Opinions of the Attorney General 1963-June 14, 1965

OPINIONS
of
THE ATTORNEY GENERAL
1963-JUNE 14, 1965 EUGENE COOK
ATTORNEY GENERAL
Printed by LONGINO & PORTER, INC_
PRINTERS ATLANTA, GEORGIA

AITORNEYS GENERAL OF GEORGIA HENRY P. F ARRER_________________________________________________________________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 JOHN C. HART__________________________________________________________________________1902-1910 HEWLETT A. HALL__________________________________________________________________1910-1911 THOMAS S. FELDER -----------------------------------------------------------------1911-1914 WARREN GRICE --------------------------------------------------------- _____________1914-1915 CLIFFORD WALKER ______________________________________________________________1915-1920 R. A. DENNY---------------------------------------------------------------------- __________1920-1921 GEORGE M. NAPIER --------------------------------------------------- _____________1921-1932
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LAWRENCE S. CAMP-------------------------------------------------- ______________1932-1932 M. J. YEOMANS-------------------------------------------------------- _________________1933-1939 ELLIS G. ARNALL______________________________________________________________________1939-1943 GRADY HEAD___________-------------------------------------------------------------------1943-1945 EUGENE COOK___________________________________________________________________________1945-1965
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~tt ~tmnrium
Julia Adelaide McClatchey Cook JULIA ADELAIDE McCLATCHEY COOK, who died August 24, 1966, was an essential part of the successful career of Justice Cook. As well as being a faithful and devoted wife, she worked for many years as Administrative Aide in the Law Department to Justice Cook while he served as Attorney General. Mrs. Cook, affectionately known as Julia, was an indispensable part of both the public and private life of Judge Cook, and their lives were entwined as one both publicly and privately. She graduated Summa Cum Laude from Wesleyan College, and only her superior training and intellect enabled her to cope with the many complex problems presented by the career of Justice Cook. Justice and Mrs. Cook are survived by two sons, Eugene, Jr., and Charles McClatchey, of Griffin, Georgia.

Julian Eugene Cook
JULIAN EUGENE COOK-Born April12, 1904, in Wrightsville, Johnson County. Mr. Cook received his AB and LLB degrees from Mercer University and while practicing law in Wrightsville he served first as Solicitor and then Judge of the City Court, and later as Solicitor General of the Dublin Judicial Circuit. In February 1943 he was appointed State Revenue Commissioner which office he held until August 22, 1945, at which time he was appointed Attorney General of Georgia by Governor Ellis Arnall. He held the office of Attorney General of Georgia for 20 years, a record among the Attorneys General of the United States. In 1953 he was elected President of the National Association of Attorneys General, the only Attorney General of Georgia to hold this office. As Attorney General he held office under 7 different Governors. During his tenure of office the State Law Department was involved in cases of unparalleled magnitude and social impact.
On June 14, 1965, Mr. Cook resigned the office of Attorney General and was appointed by Governor Carl E. Sanders to the office of Associate Justice of the Supreme Court of Georgia. Continuing his tradition of never having lost an election, Justice Cook was overwhelmingly re-elected for a full six-year term in November, 1966. Justice Cook's untimely death on April 14, 1967, was less than 8 months following the death of his beloved wife.

OPINIONS OF THE ATTORNEY GENERAL 1963- June 14, 1965
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January 2, 1963
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
You wrote concerning a male member of the Retirement System who is presently sixty years of age and has applied for retirement benefits, but who withdrew from service in August of 1951. According to your letter, at the time of his withdrawal he had twenty-three years of prior service as of July 1, 1950, and he presently has as creditable service twenty-four years and two months. His accrued contributions were left intact within the System during the separation, and he has filed his retirement application, effective November 1, 1962, selecting Option No. Two with his wife as beneficiary. Your question is whether actuarial tables in use at the time of the member's separation should be used to determine his monthly allowance, or should the actuarial tables currently in use be utilized to determine the monthly allowance.
It is my opinion that this situation is governed by subsection (10) of section 5, added to the original Act by amendment in Georgia Laws 1951, page 394 (Georgia Code Ann. 40-2505 [10]). In part this section reads :
"the right of a service retirement allowance . . . shall vest in a member who withdraws from service prior to attaining age 60, provided said member shall have completed at least 20 years of creditable service and has not withdrawn his contributions. Said member shall upon filing an application as provided in subsection (1) of this section become entitled to a service allowance upon his attainment of age 60, or at his option at any subsequent date thereto, not to exceed two years."
It being determined that this subsection (10) would control, we read further:
"The retirement allowance in the case of any such member shall be as set forth in subsection (2) of this section, based on the total credits accrued at date of his withdrawal from service, provided that if an application for retirement is not filed within the stipulation period, or if such member shall die before filing said application, the maximum allowance payable shall be limited to the member's accumulated contributions at the time of his withdrawal from service, and nothing in this Act shall be construed as providing for any benefits prior to attaining age sixty other than a return of contributions in case of death." (emphasis supplied)
We next refer to subsection (2), which reads:
"Upon service retirement a member shall receive a service retirement allowance which shall consist of:
(a) An annuity which shall be the actuarial equivalent of his accumulated contributions at the time of his retirement; and

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(b) A pension equal to the annuity allowable at age of retirement but not to exceed an annuity which would have been allowed at age sixty-five, computed on the basis of his contributions made prior to the retirement of age sixty-five.
(c) If he has a prior service certificate in full force and effect, an additional pension which shall be equal to the annuity allowable at age of retirement, but not to exceed an annuity which would have been allowable at age 65, by twice the amount of his prior service accumulations as defined Section 4, Subsection (3) of this Act, with regular interest thereon as from time to time in effect from the date of establishment until the date of his retirement, but not to exceed the attainment of age sixty-five." (emphasis supplied)
My interpretation of the two sections of the Statutes quoted above is simply that the annuity and pensions as mentioned in subsection (2) are to be computed at the time of retirement, and since age of retirement is specifically mentioned, it is my opinion any tables used would be those in effect and being currently utilized at time of retirement. I base this upon several factors, none of which would be completely persuasive alone, but which when taken together bring me to this conclusion. The annuities are based on the sum of a member's contributions at the time of his retirement. If computation of his annuity were made based on the date of his withdrawal from active service, he would lose all interest which had accumulated on his contributions since the time of his withdrawal from service. That would certainly seem unjust and I do not feel that was the intention of the Legislature. Therefore we have no alternative except to proceed to make all computations of his annuities and pensions exactly as set forth in subsection (2).
The use of "total credits" in subsection (10) is somewhat ambiguous as it is not defined therein. However, in reading the Act I find that the word "credit" or "creditable" is used in twenty-two sections and subsections, for a total of forty times. Only once, in section 5, subsection (7), is it obviously used to refer to anything other than service. In that subsection it refers to interest credits. Then we have section 5, subsection (10) which is not completely clear. In view of previous usage of this word and the meaning imputed to it, I feel the evidence to be overwhelming that the Legislature only intended the phrase "total credits" in subsection (10) to mean and indicate service credits. I feel they merely intended that no additional service credits could be accrued after a withdrawal from service.
If we are to base our computations upon the age and time of retirement, using interest which has accumulated from the time of withdrawal until the date of retirement, it would seem only reasonable that we also use the tables, actuarial or otherwise, which are being utilized at the date of retirement. It would be inconsistent to use tables that were in effect at the time of withdrawal and yet use all other data, tables, computations and credits other than service, as of the date of retirement.

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January 2, 1963
VACCINATION OF SCHOOL CHILDREN
This will acknowledge your letter wherein you request a ruling respecting vaccination of school children.
County boards of education have authority, under the provisions of Georgia Code Ann. 32-911, to adopt regulations requiring vaccination of pupils against smallpox and poliomyelitis, subject to the two exceptions stated in Code 32-911. For your information, the provisions of Georgia law codified in 32-811 are as follows:
"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."
There is no other provisions in Georgia law authorizing boards of education to require vaccination of school children other than as provided in 32-911.
January 3, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
This will acknowledge your letter relating to the question of legislation to eliminate misdemeanor prisoners from consideration for parole.
The constitutional provision creating the State Board of Pardons and Paroles is to be found in Article V, Section I, Paragraph XI of the Georgia Constitution (as unofficially codified in 2-3011, Georgia Code Ann.). Within said Paragraph XI is the following provision:
"The State Board of Pardons and Paroles shall have power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law, and may remit any part of a sentence for any offense, against the state, after

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conviction, except in cases of treason or impeachment . . . ." (emphasis supplied)
The language which is underlined is broad enough to cover misdemeanors, and therefore I am of the opinion that it would be necessary to change the Constitution in order to eliminate, as a matter of law, misdemeanor prisoners from consideration for parole.
January 8, 1963
OPINION TO THE BOARD OF PROBATION
This will acknowledge and reply to your letter relating to various provisions of the Statewide Probation Act.
One of the questions you ask is:
"Where a person receives a suspended rather than a probated sentence, but at the same time is directed to make payments for the offenses of either abandonment or bastardy by the Court, is such collection authorized under Section 14 ?"
Section 14, while restrictive as to the type of proceedings which result in the collection of funds by a probation officer, does not indicate whether the probation officer should collect funds when the "criminal proceeding" results in a suspended rather than a probated sentence.
Section 14, as now in effect, provides:
"No probation officer shall be directed to collect any funds except funds directed to be paid as the result of a criminal proceeding and funds in cases arising under the Uniform Reciprocal Enforcement of Support Act."
Section 20 of the Statewide Probation Act provides as follows: "This Act shall be liberally construed so that its purposes
may be achieved." In addition, it appears that the Legislature provided the authority for suspension of sentences in abandonment and bastardy cases, within the Statewide Probation Act itself. (Section 8) Reading these sections together, I am of the opinion that by virtue of the language above referred to, and, of course, upon proper court order, the probation officers would be authorized to collect funds made payable in connection with suspended sentences.
In addition to the above, you ask: "in view of the fact that this Board is not the appoint-
ing authority, are members of this Board liable for any shortages which might occur due to neglect or malfeasance of a probation officer or his secretary?"
This question is predicated upon the interpretation that the Board is not "in effect" the appointing authority of probation officers.

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I disagree with this interpretation and, though the Superior Court Judges have the power of recommendation and removal from the circuit (not discharge), I am of the opinion that the appointing authority is, in fact, the Board.
Further, you ask if authority exists which would authorize probation officers to collect, receipt, and disburse money in instances stated in your letter.
As I read 14 of the Statewide Probation Act, as amended, the probation officer is authorized to collect money whenever directed by the court, in any situation arising out of a criminal proceeding and in cases under the Uniform Reciprocal Enforcement of Support Act. You are correct that in divorce and separation cases, the collection of moneys by the officer is restricted to those where there has been a criminal proceeding, and the direction to collect such moneys arises out of the criminal proceeding.
Since one of your members has recently discussed with this office the question of liability of Board members for shortages, regardless of the above interpretation of that provision relating to appointment of probation officers, I am pleased to advise you concerning that subject.
Certain general rules relating to the question of liability of public officials are set out in 43 AM. JUR. Public Officers 281 (1942),
"It is settled, subject, however to a number of exceptions, that in the absence of a statute imposing liability, or of negligence on his part in appointing or supervising his assistants, an officer is not liable for the default or misfeasance of subordinates and assistants, whether appointed by him or not, providing the subordinates or assistants, by virtue of the law and of the appointment, become in a sense officers themselves, or servants of the public, as distinguished from servants of the officer, and providing the officer does not direct the act complained of, or personally co-operate in the negligence from which the injury results. And public officers having the custody of public funds or property are generally held liable for losses due to the negligence or misconduct of their subordinates." (emphasis supplied)
Also, the following is found in 71 ALR 2d 1142:
"On the broad question of the liability of public officers generally for the misconduct of an assistant or subordinate, it is clear that the general rule is one of nonliability. There are, however, a number of exceptions to and qualifications of this broad principle. Indeed these are so numerous as perhaps to justify the conclusion that they have swallowed up the rule. Among such exceptions and qualifications may be listed: statutes expressly imposing liability, negligence on the officer's part in appointing or supervising the assistant, the status of the assistant as an employee of the officer rather than as a public servant, personal direction of or co-operation in the wrongful act by the officer himself, and wrongdoing involving the loss of public funds."

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These general statements seem to encompass certain facts definitely present in your situation.
The statutes relating to circuit probation officers would tend to make them public officials or servants of the public. They are governed completely in the receipt and distribution of funds by court orders.
There are no statutes putting custody of funds in the hands of the State Board of Probation. In fact, the statute envisions the keeping of the funds in the custody of the circuit officers. See Georgia Code Ann. 27-2726.
As I am sure you are aware, this office presently is involved in litigation to recover from a former State department head for the default of a person under him. While custody of the funds in that case was in the department head, I feel it would be inappropriate to render a specific opinion dealing with this matter at this time.
January 9, 1963
JUSTICE OF THE PEACE
This will acknowledge your letter asking if a justice of the peace appointed to the office of sheriff to act as sheriff until an election is held to fill the vacancy in the sheriff's office, can continue issuing criminal warrants, and in your language "acting as sheriff, at the same time, legally." We assume that what you are asking is the authority of a justice of the peace, having also been appointed sheriff to fill a vacancy, to also serve the papers as sheriff.
Of course you are aware of the fact that a justice's court is a constitutional court and is a part of the State judicial system. It has been established that a justice of the peace, elected by the people pursuant to Georgia Code Ann. 24-401, 34-2701 and 2-3503, is not a "county officer" within the meaning of 91-703. It has been held that a justice of the peace is an officer of the State. Long v. State, 127 Ga. 285 (1907). McDonald v. Marshall, 185 Ga. 438 (1938).
We call to your attention the provisions of Georgia Code Ann. 26-5009 on the subject of separation of powers as between the judicial, executive and legislative branches of government. This provision is not so specific as to apply to the separation of duties as between a judge and a sheriff, but careful consideration should be had whether the same person should even temporarily hold both offices.
In this connection we call to your attention the case of Ormond v. Ball, 120 Ga. 916 (1904), in which it is held that a justice of the peace cannot issue a special warrant, returnable only before himself, but a warrant issued by him must be made returnable before himself or "some other judicial officer." This entire case should be given careful consideration by your county attorney.

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The powers and duties of a justice of the peace and his constables in Georgia were discussed in an unofficial opinion found in the Ops. Att'y Gen. 96 (1954-56), and for your benefit we quote from this opinion as follows :
"You will see from a close study of the above cited statutory authorities that it is the duty and power of a Justice of the Peace in criminal cases to conserve the peace in his county by issuing the necessary warrants and processes to effectuate the same. The warrants when issued should be served by a Constable, Sheriff, or other arresting officer as provided by law. The Judge should always remain in the impartial position of issuing the process and judicially hearing any question brought before him at a committal hearing. While there can be no doubt that a Justice of the Peace, like any other citizen, could arrest a person for committing a crime in his presence, where a crime has not been committed in the Justice's presence, a Justice of the Peace should issue his warrant as provided by law for the arrest and apprehension of such person, and such warrant should be executed by an officer other than the issuing justice, for the obvious reason that a person should not be the Judge and the arresting officer in the same matter."
We believe that the orderly conduct of the courts would indicate that any deviation from the above procedure would constitute an inconsistency which should not be permitted.
January 10, 1963
OPINION TO THE MERIT SYSTEM OF PERSONNEL ADMINISTRATION
I wish to acknowledge receipt of your letter in which you state that on November 1, 1960, the Governor issued an Executive Order extending Merit System coverage to all positions in the Civil Defense Division, Department of Public Defense, with certain specified exceptions, and that based upon said Executive Order the Merit System proceeded to classify all positions in the Civil Defense Division, including the Deputy Director of the Civil Defense Division, but not including the specified exceptions.
You inquire as to whether the position of Deputy Director of the Civil Defense Division could properly be included in the classified service in view of the language of 4(b) of the Georgia Civil Defense Act of 1951 (Georgia Laws 1951, p. 224), which provides that "the Governor shall appoint a Deputy Director of Civil Defense to assist the Director. . . . He shall hold office during the pleasure of the Governor who shall fix his compensation. . . ." (Georgia Code Ann. 86-1804).
It is my official opinion that where the law of this State fixes the term of office and the compensation of a position, by placing

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the same at the pleasure and in the discretion of the Governor, that to place such a position under the State Merit System would be contrary to and in direct conflict with the spirit, intent, and purpose of the law creating the State Merit System.
Section 40-2207 of the Georgia Code Annotated, among other things, states that the State Personnel Board shall adopt rules and regulations for the classification, examination, and appointment of positions under the Merit System, and through such rules and regulations, shall also provide for appointments, promotions, transfers, demotions, separation tenure, reinstatement, and appeals. To place the Deputy Director of the Civil Defense Division of the Department of Public Defense under Merit System coverage where his tenure and his compensation would be fixed by rules and regulations of the State Personnel Board would be in direct conflict with the law above cited, which provides that he shall hold office during the pleasure of the Governor, who shall fix his compensation.
It is my further opinion that the Executive Order approved November 1, 1960, extending Merit System coverage to all positions in the Civil Defense Division, and not excepting the position of Deputy Director, could not have intended to accomplish coverage for a position prohibited by law.
For these reasons, it is my opinion that the Deputy Director of the Civil Defense Division, Department of Public Defense, could not be properly included in the classified service in the State Merit System of Personnel Administration.
January 11, 1963
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I have received your letter in which you state:
"There is a need for clarification with regard to the use of funds for training personnel as set forth in Chapter 35-11 of the Georgia Code Annotated, 'Payment for Cost of Care of Patients in State Institutions.'
"1. Is there authority to use these funds to grant training scholarships to employees of Battey State Hospital, Gracewood State School and Hospital, Alcoholic Rehabilitation Service and Milledgeville State Hospital?
"2. Is there authority to use these funds to contract with various schools, payment of stipend will be made by the school, to train employees from each of the institutions under the jurisdiction of the State Health Department?
"3. In the use of these funds for training scholarships, is payment a gratuity or gift, if a contract is obtained requiring future service from the applicant in payment of scholarship?

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"We are anxious to move forward in providing qualified personnel for each of our institutions and will appreciate an opinion from your office at your earliest convenience."
Owing to the interrelation of the questions as you have propounded them, I shall discuss them all as one.
The "Cost of Care" Act, Georgia Laws 1960, pp. 1138-1143, is unofficially codified in Georgia Code Ann. as Chapter 35-11. The provision having bearing upon the questions you have raised is 35-1112, which reads:
"It being the intent of this Chapter that the .patients or those responsible for the support of said patients shall pay some part of the cost of care, all funds collected hereunder shall be made available for the support of the operation of the State institutions, however, such funds shall be budgeted in accordance with State law and approved by the Budget Bureau. If approved by the Budget Bureau and the Georgia Department of Public Health these funds may be used for the support of research and education including the training of psychiatrists, physicians and other mental health personnel."
The provision of the law that "all funds collected hereunder shall be made available for the support of the operation of the State institutions ..." would have first priority upon all funds collected. However, the last sentence of 35-1112 reads, "If approved by the Budget Bureau and the Georgia Department of Public Health these funds may be used for the support of research and education, including the training of psychiatrists, physicians and other mental health personnel."
This section must be construed in the light of the prohibition against gratuities found in Article VII, Section I, Paragraph II of the Georgia Constitution of 1945, (Georgia Code Ann. 2-5402) which begins:
"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association ..."
Without more, this would probably block any attempt to grant scholarships or training under the "Cost of Care" Act, as has been indicated by previous interpretations by the courts, and in previous opinions by this office (Ops. Att'y Gen. 395 (1958-59); Ops. Att'y Gen. 417 (1948-49)).
However an amendment was adopted to Article VII, Section I, Paragraph II in 1960. (Georgia Laws 1960, p. 1215, ratified Nov. 8, 1960.) This amendment is unofficially codified as 32-3011 of Georgia Code Ann. and reads:
"The Director of the Department of Public Health, with the approval of the State Board of Health, is hereby authorized to extend scholarships to physicians and other personnel to take post graduate courses in the various schools and clinics in the United States so as to enable them to be better quali-

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fied in the diagnosis, care and treatment of mental illness. As a prerequisite to the grant of such scholarship, the recipient thereof must agree to actively engage in the practice of his profession in a hospital operated by the State of Georgia, under the supervision of the State of Georgia, or at some place approved by the authority granting the scholarship, on the basis of one year of service for each year of training received. The remedies for the enforcing of service required shall be the same as provided for medical grants and scholarships and such other remedies as may be provided by law."
It is my opinion that only under this 1960 amendment could scholarships be legally granted. It gives clear constitutional authority to a system of awarding post graduate study to physicians and other personnel in the mental illness.
To answer your questions specifically:
(1) There is Constitutional authority to use cost of care funds to grant training scholarships to employees of any of the institutions operated by the Health Department but only "so as to enable them to be better qualified in the diagnosis, care and treatment of mental illness."
(2) It is my opinion that the method of granting scholarships referred to in 32-3011 of Georgia Code Annotated, and the remedies of enforcing service required shall be the same as provided for medical grants and scholarships, and such other remedies as may be provided by law as set forth in 32-3005 of Georgia Code Annotated. That Code section specified that the medical board shall be authorized to grant to each applicant deemed by the board to be qualified to receive the same, a loan or scholarship for the purpose of acquiring a medical education as therein provided for upon such terms and conditions to be imposed by the board as provided for in Chapter 32-30 of the Annotated Code. Section 32-3006 provides that the medical board may enter into contracts with medical colleges and pay out funds from the scholarships in accordance with the terms of the contracts.
Therefore, it is my further opinion that the Department of Health, within the limitations set out above as to the use of the funds, may contract with various schools and make payment from the scholarship funds to the schools for the training of employees of the institutions under the jurisdiction of the State Health Department, in the field of mental health.
(3) An award of a training scholarship in the field of mental health from these funds is not a gratuity or gift, if the contract obtained requires further service from the applicant in payment of the scholarship as provided by law.

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January 14, 1963
OPINION TO THE INSURANCE DEPARTMENT
This will reply to your recent letter requesting advice as to your authority to issue a Certificate of Authority to The Preferred Life Insurance Company, an Alabama corporation. You enclosed a letter from the attorneys for the company. The enclosed letter outlines in detail the procedural steps taken under the Alabama Statutes to convert the company from a benefit society into a stock insurer, and also explains in detail how and why the amount of capital stock, $165,000, was arrived at.
At the outset I must point out that the resulting or surviving corporation, that is, the stock insurance corporation, does not have the minimum amount of capital required for admitting a new stock company in Georgia. I must also point out that the situation involved here, that is, the conversion of a fraternal society directly into a stock insurance company, is one not contemplated and not provided for in the insurance laws of this State.
Reviewing the history of subject company briefly, it was organized under the laws of the State of Alabama in 1927 and was licensed to do business as a fraternal benefit society in the States of Alabama, Georgia, Louisiana and South Carolina. It has approximately $22,000,000 of beneficial membership certificates (insurance) in force; assets of approximately $8,000,000, and earned surplus of approximately $850,000. It has been doing business in Georgia since 1931 and has $5,174,000 of insurance in force upon its members residing in this State. Its earned surplus has grown more than $225,000 in the period from December 31, 1960 to September 30, 1962.
These statistics are pointed out in vi.ew of the minimum requirements of a fraternal society under the laws of our State of not less than $500,000 insurance on not less than 500 members and the collection of at least one monthly premium which amount of premium in the aggregate shall amount to at least $2,500 in order to organize a fraternal; and the minimum requirement of $200,000 capital and $200,000 expendable surplus to organize a new stock insurer; and the like requirement that a mutual insurer have a surplus of $200,000 together with an additional expendable surplus of $200,000 in order to qualify for a license when first organized. There is no mandatory requirement that either a stock or mutual insurer maintain the $200,000 of expendable surplus after it has commenced business.
Here we have a company in full compliance with the laws of the state of domicile and which has been doing business of a specific type of insurance (fraternal benefit society) in this State for more than 30 years, being converted under a Statute which provides that the resulting stock insurer shall be a continuation of the prior fraternal benefit society. In this connection, your attention is called to the provisions of Georgia Code Ann., 56-311, which state: "If with respect to any insurer lawfully authorized to transact insurance in Georgia immediately prior to the effective date of this Act [January 1, 1961], this Title requires a greater amount of capital or sur-

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plus, or deposit than required of such insurer immediately prior to such effective date, such insurer shall have the period ending July 1st five years after the enactment of this Title within which to comply with such increased requirements."
While it is not conceded that the resulting stock insurer, in so far as the laws of Georgia are concerned, is a continuation of the former fraternal society, since it is our opinion that the resulting stock company, technically at least, is a new corporate entity, in view of the authority and discretion vested in you as Insurance Commissioner to carry out the intent and purpose of the Insurance Code; in view of the absence of specific statutes in our State covering the situation here involved, and considering the history and financial stability of the company, the five year provision of 56-311, and the fact that the management, mode of operation, amount of risk and re-insurance provisions of the resulting corporation will be the same (except the limitation on writing members of the fraternal and members of their families), I am unwilling to state that you are without authority to issue to subject company a Certificate of Authority, upon making the statutory deposit required by 56-310 of the Georgia Code Annotated.
January 15, 1963
CERTIFICATE OF TITLE LAW
This is in reply to your question as to whether or not an automobile owned by a serviceman's wife may be excluded from the operation of Georgia's Certificate of Title Law.
The Motor Vehicle Certificate of Title Law provides that "Every owner of a vehicle which is required to be registered in this State by law . . . shall make application to the Commissioner for a Certificate of Title ... ," with certain exceptions for older model vehicles.
A serviceman stationed in this State solely because of military orders, and who is a resident of another State, is not required to register his automobile in this State and is, therefore, not required to make an application for a certificate of title. The reason that the serviceman is not required to register his automobile in this State is because of the provisions of the Soldiers' and Sailors' Civil Relief Act, which may be found in 50 U.S.C.A. 574. The provisions of the Soldiers' and Sailors' Civil Relief Act do not inure to the benefit of the serviceman's spouse. The serviceman's wife is, therefore, required to register her automobile in this State, pay the taxes on the automobile in this State, and make an application for a certificate of title in this State unless, of course, she too is a member of the Armed Forces.

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January 17, 1963
OPINION TO THE INDUSTRIAL LOAN COMMISSIONER
This will reply to your letter in which you asked to be advised on the following questions:
1. What authority does the Industrial Loan Commissioner have to revoke or suspend a loan license for cause? What are the causes (grounds) for suspension?
2. What authority does the Commissioner have to revoke a license issued but not activated?
3. Is there any specific time for the activation of a license?
4. What authority is there to revoke a license where illegal practices on the part of the licensee have been established in a court of competent jurisdiction?
5. What authority is there to revoke or suspend a license where business is being conducted in a place other than the location specified in the license?
6. What criteria should be applied to applications for renewal of license ?
You are advised as follows :
1. Authority is vested in the Industrial Loan Commissioner to suspend or revoke a license by 12 of the Industrial Loan Act (unofficially codified as 25-312 of the Georgia Code Annotated) which provides that the Commission "upon giving 10 days written notice in the form of a show cause order . . . stating his contemplated action and in general the grounds therefor, and after giving the licensee a reasonable opportunity to be heard, subject to the right of review [right of appeal] may by order in writing suspend or revoke a license ... if the Commissioner shall find: (1) the licensee has failed to pay the annual license fee or any fee required under this Act, or (2) that the licensee has knowingly violated any of the provisions of the Act."
The power of the Commissioner to suspend or revoke a license is also incorporated in the general powers of the Commissioner as set forth in 6 of the Act (Georgia Code Ann. 25-306) which provides that the Georgia Industrial Loan Commissioner "is hereby invested with all of the powers and authority provided for such Commissioner. In addition to those powers specifically enumerated, it shall be his duty and authority to supervise generally and to exercise regulatory powers over the making of loans of $2,500 or less in the State of Georgia by persons governed and regulated by this Act."
Further authority is vested in the Commissioner by 6 (a) of the Act which authorizes the promulgation of rules and regulations consistent with the terms of the Act which shall have the full force and effect of law.

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1 (a). As to specific grounds or cause for revocation or suspension of a license, any of the following would suffice:
(a) Any fraud used in obtaining the license originally or any renewal thereof; A false answer or statement as to any material fact in the application would constitute such fraud;
(b) Knowingly making and collecting charges in excess of those allowed under 15 (Georgia Code Ann. 25-315);
(c) Failing to keep proper books and records as required by 10 of the Act and Part II of the Rules and Regulations heretofore promulgated by your predecessor in office;
(d) Transacting business at places other than the address designated in the license [By transacting business we mean making loans, renewing loans, collecting installment payments on loans, or doing any other act or acts necessary to or customary in the conduct of a loan business.]; or
(e) Without going into further detail, failing to comply with any other provision of the Act or the Rules and Regulations duly promulgated thereunder.
2 and 3. As to the suspension or revocation of a license issued but not activated, the Georgia Industrial Loan Act is silent as to the length of time which a licensee may hold a license before it is activated. Certainly the licensee would be permitted a reasonable time to open an office after obtaining a license; and what would constitute a reasonable time would vary with the facts and circumstances of each case.
I have examined application for license form 1-BP-8775 -2-M-3-55 which I assume is currently in use, together with the Rules and Regulations revised up to January 1, 1959 and also Official Regulations 1063 and 1066 (I do not find a copy of Nos. 1064 or 1065) and find no regulatory provision governing the time in which a license must be activated, or any material touching this subject. It is therefore my opinion that the licensee could hold a license unactivated during the calendar year in which it was issued and that the Commissioner is without authority at this time to revoke or suspend solely on this ground. It would appear that perhaps thought should be given to the promulgation of regulations in this area.
4. As to authority to revoke or suspend a license for illegal practices under the Act, this authority has previously been pointed out in answer to Question No. 1. Your attention is again called to the provisions of 12, sub-paragraph 2 of the Act which provides for the suspension or revocation of a license where it is determined that the licensee has violated any provision of the Act.
It should be noted, however, that administrative action revoking or suspending a license must be predicated upon the prescribed administrative procedure set forth in this Section; that is, ten days written notice in the nature of a show cause order to the licensee

15
setting forth the action contemplated, and, in general, the grounds therefor, and affording the licensee an opportunity to be heard. At such hearing a certified copy of the record of the action of a court of competent jurisdiction could be introduced, and, except in a case where a plea of "nolo contendere" had been entered, that record would make out a prima facie case of violation.
5. With reference to conducting business at a place other than that shown in the license, your attention is called to 9 of the Act which provides: "No more than one place of business may be maintained under the same license. Each such license shall be conspicuously displayed at the place of business."
Also your attention is called to the requirements of 10 that the licensee shall keep and use in his business sufficient books and records to enable the Commissioner to determine whether or not the licensee is complying with the provisions of the Act. While 10 does specifically say that such records shall be kept at the address shown on the license, when this Section is construed in the light of the entire Act and when Part II of the Rules and Regulations is taken into consideration, no other logical construction can be placed on 10. Therefore, in my opinion, conducting business at a place other than that which is shown on the license would be a valid ground for revoking or suspending a license.
6. As to the criteria to be applied to the application for renewal of a license, the Act does not specifically provide for an "application for renewal." Section 9 merely provides: "Every licensee shall, on or before the twentieth (20th) of each December, pay to the Commissioner the sum of $200.00 for each license held by him as an annual license fee for the succeeding calendar year." When this provision is construed in the light of the provision in 7 that a license shall expire on the last day of calendar year in which granted, it seems to be clear that the Legislature intended that a license should be renewed annually and not be a continuing license.
Since the Commissioner has the authority to initiate an investigation into the method of operating of a licensee at any time, he has the authority to weigh his qualifications for license at any time, which includes the time the license comes up for renewal. It would therefore appear that he should apply the same tests or criteria at time of renewal that are applied at time of original application. Section 8 of the Act provides that the Commissioner, should he find that the financial responsibility, character and general fitness of the applicant are such as to command the confidence of the public and to warrant a belief that the business will not be operated unfairly or unlawfully within the purpose of this Act, and (2) should he determine that allowing the applicant to engage in business will promote the convenience and advantage of the community in which the licensee's office is to be located, shall grant such application and issue a license to the applicant.
Since there is a presumption in law that the acts of a public official are legal and that such public official has properly performed the duties of his office, there is a presumption that the present

16
holders of licenses under the Georgia Industrial Loan Act are legally entitled thereto. It would therefore be incumbent upon you as the licensing authority, in view of the provisions of the Act, at time of renewal of licenses, after show cause notice and hearing, should the license not be renewed, to point out in writing wherein the holder of the license fails to meet the legal standards therefor.
January 19, 1963
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I have your recent letter requesting us to review the file of Mrs. B with reference to leave of absence granted to her, and to advise you whether under the circumstances Mrs. B can be permitted to retain all or any part of the leave allowance granted to her.
The file discloses that Mrs. B was granted a leave for one academic quarter with full pay during the Spring Quarter of 1962 for advanced study in Political Science at Emory University, and that during that quarter one of her courses was taught by a member of the department and the remaining two courses by a part time teacher at a total cost of $700.00. Mrs. B agreed in her petition for leave that she would return the full amount of compensation received while on leave if she should not return to the institution for at least one year of further service after the termination of her leave. Mrs. B returned to her teaching duties for two quarters following termination of the leave and would have continued her service were it not for her marriage on December 20, 1962, which made it necessary for her to leave the city.
Although there are many extenuating circumstances mitigating against a strict construction of the agreement signed by Mrs. B, I do not see that you have any other alternative but to insist upon the performance of the obligations accepted by Mrs. B. There is no provision in the grant of the leave with pay permitting partial performance, and I am of the opinion that to waive performance of the agreement and permit Mrs. B to retain any or all of the leave allowance compensation would amount to the granting of a gratuity on the part of the Regents of the University System, which would be contrary to law.
It is my opinion that Mrs. B will have to return the full amount of compensation received by her while on leave because of the fact that she did not fulfill her obligation to teach at the institution for one year of service after the termination of her leave.

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January 21, 1963
OSTEOPATHY
This is to acknowledge receipt of your letter in which you asked the following:
"Our specific problems, which is recurring, relates to the practice of osteopathy in the State of Georgia. We would appreciate your assistance with these questions. Are all osteopaths fully licensed to practice in Georgia? If licenses are limited in any way, in what regard are they limited? If any such licenses are limited does this apply to a segment of the profession or to all of it?"
Georgia Laws 1909, p. 123 created the State Board of Osteopathic Examiners of Georgia and authorized the practice of osteopathy and provided for the licensing of osteopaths.
Section 84-1209 of the Georgia Code Annotated provides:
"84-1209. License to practice authorizes what.-The license provided for in this Chapter shall authorize the holder to practice osteopathy as taught and practiced in the legally incorporated and reputable colleges of osteopathy, as provided for in this Chapter: Provided, however, osteopaths shall be authorized for the alleviation of pain only to use, mix, prepare, dispense and administer certain narcotic drugs, to-wit, those narcotic drugs or their derivatives, the sale or dispensing of which is regulated by the Federal Act known as "The Harrison Narcotic Act," as amended, said Act being set out in 26th U.S.C.A. Int. Rev. Code, 3220 et seq."
Only persons licensed to practice medicine in Georgia may do so. This, of course, would not include osteopaths.
January 21, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
Thank you for your letter relating to interpretation of a part of the last paragraph of Georgia Code Ann. 32-611, which deals with determination of school bus transported pupils for State aid purposes, and for a copy of the letter received by your office from a local superintendent inquiring into this matter.
The last paragraph of Georgia Code Ann. 32-611, as amended, provides in part as follows :
"Any pupil who lives within one and one-half miles, according to the nearest practical route by school bus, of the school which such pupil is eligible to attend shall not be eligible to be counted as a transported pupil for State aid.

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Pupils who live beyond such distance shall be eligible to be counted as transported pupils for State aid provided such pupils are transported by school busses or other vehicles authorized by the county board of education of the county in which such pupils reside."
In answer to the first and second questions asked by you, I am of the opinion that the above-quoted portion of 32-611 does in effect limit itself to the means of determining pupils that can or cannot be legally counted as transported pupils for State aid purposes. The above-quoted language of 32-611 does not of itself require county boards of education to provide school bus transportation to pupils living either within or without the one and one-half (1:1;2) mile limitation there referred to, but merely provides that those living within such limitation as there defined shall not "be counted as a transported pupil for State aid," whereas those living without such limitation as there defined shall be counted as transported pupils "provided such pupils are transported by school buses or other vehicles authorized by the county board of education." This language does not prohibit a local board of education from providing school bus transportation for pupils living within one and one-half miles of the school which such pupils are eligible to attend, but such pupils cannot be counted as transported pupils for State aid purposes. By the same token, the subject language does not actually require local boards of education to provide school bus transportation for pupils living beyond such one and one-half mile limitation, though such appears by implication to be the intent of the statute. The above-quoted language of the statute, therefore, would not in my opinion prevent a local board of education from establishing any distance limitation it may find desirable. There are other portions of the subject statute that should be considered however, and I direct your attention particularly to the last sentence of the first paragraph of 32-611, which provides:
"In determining the density of transported pupils within a county, the area not to be served by public school buses shall be deducted from the total area of the unit and the State Board shall have authority to determine areas to be served. (emphasis added)
You will likewise note that the following language appears in the penultimate paragraph of 32-611, to-wit:
"Except as to the salary provisions provided for in this Chapter, the State Board of Education shall have the right and power to review all provisions of this Chapter, so as to provide an economical and efficient school transportation program."
The State Board of Education is therefore vested with certain statutory authority in this area. Information furnished me indicates, however, that the State Board of Education has not heretofore undertaken to exercise full authority vested in it in this area of consideration, and has not established any policy to the effect that a county board of education must provide school bus transpor-

19
tation to pupils residing within any specific distance from the school which such pupils are eligible to attend.
In answer to your third question, I am of the opinion that the phrase "nearest practical route by school bus" contains no words of art and must therefore be given its ordinary signification by local boards of education, that is, a common sense, practical interpretation which conforms to the overall intent and purpose of the statute of which it is a part. Georgia Code Ann. 102-102 (1). The phrase relates of course to each particular pupil and to the particular school to which each particular pupil is assigned to attend, and is broad enough to permit local boards to consider all matters which might ordinarily be considered under the particular local circumstances as may prevail in a given situation or case, such as the type and nature of the bus, road conditions, traffic hazards, obstacles, etc., and the extent to which such may bear upon the question of whether or not a particular route is a practical route.
In answer to your fourth question, the Act of the General Assembly approved March 6, 1961 (Georgia Laws 1961, p. 104) adding to 32-611 and 9 of the Minimum Foundation Program for Education Act the language first above-quoted did not have included therein a provision limiting the effectiveness of the provision of the Act until such time as "funds are available," but became effective immediately upon approval by the Governor. I am enclosing a copy of an opinion rendered you on July 11, 1961, relating in general to 32-611 and the inclusion of provisions of such nature in past amendments to 32-611.
January 23, 1963
OPINION TO THE SECRETARY OF STATE
On November 19, 1962, you were advised by this office in connection with the merger of Gulf States Life Insurance Company (a Georgia Corporation) into Kentucky Central Life and Accident Insurance Company (a Kentucky Corporation), that the provisions of the new Insurance Code relating to mergers of insurance companies (Georgia Laws 1960, pp. 289, 559; Georgia Code Ann. 56-1534) required compliance with the provisions of the Insurance Code relating to creation of a domestic insurance company (Georgia Laws 1960, pp. 289, 537; Georgia Code Ann. 56-1505 and 56-1506), notwithstanding the fact that the surviving company was to be a foreign corporation and the merger was effected under the applicable laws of a foreign state, on the ground that the provisions of the General Corporation Statutes dealing with mergers of a domestic corporation into a foreign corporation, where the survivor is to be a foreign corporation, was, in effect, repealed by the Insurance Code because the effective date of the Insurance Code was January 1, 1961, which was after the effective date of 22-1843.1.
Though this opinion left my office in the form of an official opinion, it was written in my absence by one of my Assistants, and

20
the conclusion reached therein was not discussed with me until my return.
I have been requested to review this opinion, and after collaborating with the author of that opinion, and with Assistant Attorney General Paul Rodgers, assigned to you, we have reached the conclusion that the opinion should be recalled and voided because of the uncertainty of the conclusions of law therein reached.
I am informed that the attorneys for the merging companies had filed copies of the merger agreement, together with the filing fee with you, and subsequent thereto you returned same and enclosed a copy of the opinion.
It is my considered opinion after reviewing the letter of November 19, 1962, which was written and mailed from my office without my knowledge, that it was an incorrect interpretation of the law, and the following constitutes my formal and official opinion dealing with the subject matter.
The new Insurance Code (Georgia Laws 1960, p. 289; Georgia Code Ann. 56-101, et. seq.) was approved March 8, 1960.
Section 56-115 provides that the provisions of the Act, except as otherwise expreBsly provided, became effective January 1, 1961.
Section 56-1503 provides that the applicable statutes of Georgia relating to the powers and procedures of domestic private corporations formed for profit apply to domestic stock insurers excep,t where in conflict with the express provisions of Title 56 and the reasonable implications of such provisions.
Section 56-1505 contains the provisions relating to the filing of the application for a charter of a domestic insurance company.
Section 56-1506 contains the provisions relating to the issuance of a certificate of incorporation for a domestic insurance company.
Section 56-1534 contains the provisions relating to the merger of a domestic stock insurance company with a domestic or foreign insurance company and provides, in pertinent part, that a domestic stock insurer may merge or consolidate with one or more domestic or foreign corporations by complying with the applicable provisions of the statutes of this State governing the merger or consolidation of stock corporations formed for profit and the provisions of 56-1505 and 56-1506.
As noted above, 56-1505 and 56-1506 relate only to the filing of an appUcation for charter and the issuance of a certificate of incorporation.
Where a domestic insurance company merges with another domestic insurance company, the resulting company is a new and distinct corporation, and an application for a new Charter has to be filed with the Secretary of State in order to secure a new certificate of incorporation.

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Since an application for a new Charter for the resultant corporation is necessary, the provisions of 56-1505 and 56-1506 are applicable. In this connection each and every paragraph of 56-1505 makes specific reference to the application for charter. In like manner 56-1506 makes specific reference to the application for charter.
However, in the case of a merger of a domestic insurance company into a foreign insurance company, where the resultant corporation is to be a foreign insurance company, the resultant corporation is governed by the procedure of the foreign state. Thus, there is no ap,pHcation for a charter filed with the Secretary of the State and he does not issue a new charter.
There is no conflict between the provisions of 56-1534 and 22-1843.1 as they relate to the merger of a domestic company into a foreign company.
Section 56-1534, insofar as it requires compliance with 56-1505 and 56-1506, can apply only where there is a merger of two domestic insurance companies or a merger of a domestic insurance company and a foreign insurance company, with the survivor being a Georgia company.
Certainly, in the case of a merger of a domestic insurance company with a foreign company, with the survivor to be governed by the laws of the foreign state, there can be no logical justification for requiring compliance with only certain provisions of 56-1505 and 56-1506. If any are applicable, then all would be applicable.
Georgia Code Ann. 22-1843.1 (Georgia Laws 1960, pp. 1111, 1112) was approved and became effective March 17, 1960. It provides that where a domestic corporation merges with a foreign corporation and the surviving corporation is to be a corporation of a state other than Georgia, the laws of such foreign state determine the formal requirements for the merger, provided that if the Georgia corporation so merged is one of a type chartered by the Secretary of State, a copy of the merger agreement shall be filed with the Secretary of State and a $5.00 filing fee paid.
Section 22-1843.1 is not in conflict with 56-1534 but in any event, as a matter of law, 22-1843.1, having been approved after the Insurance Code of 1960, supersedes it to the extent that they may conflict even though the effective date of Title 56 was subsequent to the effective date of 22-1843.1.
In McDonald v. Justices of Superior Court, 299 Mass. 321, 13 N.E.2d 16 (1938), the Supreme Judicial Court of Massachusetts said:
"There is authority to the effect that a statute passed later but going into effect earlier than another statute dealing with the same subject reflects the latest legislative intent and will prevail over the other, which was passed earlier but went into effect later. People v. Wabash Railroad Co., 276 Ill. 92, 114 N.E. 552; Dewey v. Des Moines, 101 Iowa 416, 70 N.W. 605; Dowty v. Pittwood, 23 Mont. 113, 57 P. 727; McLaughlin v. Newark, 57 N.J.L. 298, 30 A. 543."

22
See also People v. Wabash Railroad Co., 276 Ill. 92; 114 N.E. 552 (1916), where the Court states:
"It has been held that between two acts in conflict, one passed later, but going into effect earlier, will prevail over one passed earlier, but going into effect later (1 Lewis' Sutherland on Stat. Const. (2nd Ed.) 280; Dewey v. City of Des Moines, 101 Iowa, 416, 70 N.W. 605; Dowty v. Pittwood, 23 Mont. 113, 57 Pac. 727; McLaughlin v. Newark, 57 N.J. Law, 298, 30 Atl. 543); and it has also been held that an act going into effect immediately will prevail over an act passed before it, but going into effect later. Belding Land & Improvement Co. v. City of Belding, 128 Mich. 79, 87 N.W. 113; Heilig v. City Council of Puyallup, 7 Wash. 29, 34 Pac. 164." (emphasis supplied)
The case of Ross v. Jones, 151 Ga. 425 (1921), is not in conflict with the rule of law set out in the above cited cases because it merely holds that the legislature may pass an act to become effective at a later date. It does not deal with the question here under consideration.
In summary, then, there is no inconsistency between 56-1534 and 22-1843.1 as they relate to the merger of a domestic insurance company into a foreign insurance company and the reference in 56-1534 to the provisions of 56-1505 and 56-1506 can relate only to the merger of two domestic insurance companies or the merger of a domestic insurance company with a foreign company, where the survivor is to be a Georgia company, in which case an application for a new Charter is made and a new Charter actually issued. But, even if 22-1843.1 is inconsistent with 56-1534, as it relates to the merger of a domestic insurance company into a foreign insurance company, 22-1843.1 is controlling because it was approved after the new Insurance Code. The fact that the new Insurance Code did not become effective until January 1, 1963, is completely immaterial.
Even if it could be said that the new Insurance Code is controlling as it relates to mergers of insurance companies, the provision of 56-1534, as it relates to mergers of a domestic insurer with a foreign insurer, never became effective on January 1, 1963, because this provision was repealed by 22-1843.1 and this provision did not exist, and accordingly could not become effective, on January 1, 1963.
Based on the foregoing opinion, you should receive the merger agreement, together with the prescribed filing fee as you had been previously advised prior to the opinion of November 19, 1962, which is hereby recalled.
January 23, 1963
CHILD LABOR
This will acknowledge your inquiry asking if it is illegal in the State of Georgia for youths under the age of 18 years to hire out to

23
cut grass with a power mower. The impression which you received from a newspaper in Tennessee on the subject is apparently not correct.
The child labor regulations of the State of Georgia are found in Georgia Code Ann. Chapter 54-3. One provision especially, contained in 54-301, is called to your attention:
"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."
We do have provision in Georgia Code Ann. 54-304 with reference to children under the age of 16 being permitted to work in certain operations in the operation of machines and processes and industries which are catalogued as hazardous. This provision, however, has to do largely with factory work and there is no provision in it with reference to power lawn mowers and no provision prohibiting children under the age of 16 from using them.
The Commissioner of Labor of Georgia has authority under the law to designate any place or occupation which may be dangerous to life and limb, or injurious to health or morals of children under 16 years of age. However, no such designation or regulation has ever been issued by the Commissioner of Labor.
Work during school hours is regulated in Georgia Code Ann. 54-307 to 54-309. We have found no federal provision of law on this subject and are advised that the federal government child labor laws take no jurisdiction with reference to power lawn mowers.
January 23, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter requesting my opinion as to the application of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended, to the purchase of school supplies, such as paper, pencils, etc., by the Board of Public Education for the City of Savannah and the County of Chatham under the following circumstances:
At the beginning of each school term, each pupil is asked by the Board to contribute $2.00, the average cost per pupil per school term of school supplies, for the purchase of such supplies. Although the pupils are not required to contribute, few fail or refuse to do so.
The teachers, acting pursuant to Board directives, collect and issue receipts for the contributions. Afterwards, they turn them over to their principal, who, in turn, deposits them in a special ac-

24
count and forwards a duplicate deposit slip to the Board for accounting purposes.
All the contributions are used by the Board for one purpose: To purchase school supplies for its pupils. Every twenty days the Board distributes some of the supplies to the teachers, who, in turn, issue. them to the pupils.
To answer the question you have raised, it is necessary to understand the relationship between the parties involved. In this connec, tion, reference is made to the provisions of Georgia Code Ann.. 108-104 and 108-106. Those sections provide:
"108-104. Express and implied trusts; definitions.-Trusts are either express or implied. Express trusts are those created and manifested by agreement of the parties. Implied trusts are such as are inferred by law from the nature of the transaction or the conduct of the parties."
"108-106. Trusts are implied.-
"1. Whenever the legal title is in one person, but the beneficial interest, either from the payment of the purchase money or other circumstances, is either wholly or partially in another.
** * *
"3. Where from the nature of the transaction it is manifest that it was the intention of the parties that the person taking this legal title should have no beneficial interest."
It seems clear, from two facts you have furnished me, that theparties do not intend that the Board have any (much less the whole) beneficial interest in the contributions. They are made for a specific purpose: The purchase of those school supplies which are not ordinarily furnished school children out of public funds; they are deposited by the Board in a special bank account earmarked for that purpose; and they are used for that purpose and no other. Public funds derived from taxation or other sources are not used for that: purpose.
I conclude from this that the Board and the pupils, with respect to the contributions and any supplies bought therewith, are trustee and beneficiaries, respectively, under an implied trust. Incidentally, it is not necessary that such a trust be created in writing or by use of any particular form of words. Gordon v. Green, 10 Ga. 534 (5) (6) (1851).
Having reached the aforementioned conclusion respecting the relationship of the parties, I am of the opinion that the purchase. of school supplies under the above circumstances, although made by an agency of the State and the local political subdivisions in which it is located, is subject to the sales tax. If it were otherwise, anyone could escape the tax by the simple device of having some one en-. titled to buy tangible personal property tax-free make his purchase.

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January 24, 1963
OPINION TO THE DEPARTMENT OF REVENUE
In your letter you asked for my official opinion on the following question:
"Where a distributor, under the Motor Fuel Tax Law, has legally and properly paid certain taxes, and subsequent to such payment the distributor files an application for refund of interest and penalties only under the provisions of Georgia Laws 1937, pp. 167, 202, Georgia Code Ann. 92-1418, and in said application sets forth equitable reasons why said refund should be made, may the claimed refunds be legally paid out under the provisions of the Georgia Law relied upon, even though the application for refund acknowledges the fact that the principal tax was properly and legally collected?"
Section 92-1407 (D) of the Motor Fuel Tax Law states:
"When any distributor shall fail to file its monthly report with the State Revenue Commissioner on or before the time fixed in this Chapter for the filing thereof, or when such distributor shall fail to pay to the State Revenue Commissioner the amount of excise taxes due to the State of Georgia when the same shall be payable, a penalty of 20 per cent. shall immediately accrue, and thereafter said tax and penalty shall bear interest at the rate of seven per cent. per annum as provided by law."
This is the levying provision which imposes the penalty and the interest.
It is fundamental that all persons are presumed to know the law. It is equally fundamental that all persons subject to taxation have placed upon them the burden of determining their tax liability. The general rule is that the liability for a penalty or interest cannot be avoided upon the grounds that the taxpayer entertained a belief or contention made in good faith that he was not liable for the payment of the principal tax. See Section 975, 51 Am. Jur. 852. Where a tax statute fixes a specific amount as to a penalty and interest, the statute to that extent is self-executing. See American Surety Co. v. Hamrick Mills, 191 S. C. 362, 4 S.E.2d 308 (1939). As you can see, the provisions in the Motor Fuel Tax Law set forth a specific penalty and a definite amount of interest. It is my opinion that this provision is self-executing.
Georgia Laws 1937-38, Ex. Sess., pp. 77, 96, (Georgia Code Ann. 92-8439) states:
"All penalties imposed by State statutes are part of the tax to be collected as such. The proceeding to collect the original tax, the tax constituted from penalties imposed, and the interest, shall all be conducted in the same manner. Provision for criminal prosecution shall not in any event operate under the tax laws of the State to relieve any taxpayer of any tax, penalty, or interest imposed by law."

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It has been consistently held that this provision makes penalties and interest as much a part of the tax as the tax itself.
The specific refund provision with which we are here dealing states:
"In the event it shall appear ... that any taxes, interest or penalties imposed by this Chapter have been erroneously or illegally collected . . ." Georgia Laws 1937, pp. 167, 202 (Georgia Code Ann. 92-1418).
These are the only pertinent words in this section which establish conditions under which a refund may be made. Under this section refunds may only be made where taxes, interest, or penalties have been erroneously or illegally collected. There is no provision under the Motor Fuel Tax Law for the waiver of penalties and interest for any other cause, regardless of how providential they may be.
As shown above, the mistaken belief on the part of the taxpayer that he was not liable, regardless of the good faith involved, does not entitle the taxpayer to a refund under 92-1418.
January 28, 1963
OPINION TO THE BUDGET BUREAU
I am in receipt of your request for an official opinion in which you state:
"The General Assembly at its recent session provided for Grants to Municipalities for the upkeep and construction of roads and streets. I would like your opinion as to whether the Constitution of the State of Georgia, as amended, provides that this may be one of the purposes to which Motor Fuel Tax revenues may be allocated or appropriated."
The General Assembly, at its 1962 Extraordinary Session, enacted legislation approved October 8, 1962 to provide "for grants to the incorporated municipalities of this State for the purpose of aiding in the construction and maintenance of streets and for aiding in defraying the costs of providing personnel and equipment for the control of traffic; ..." (Georgia Laws 1962, Sept.-Oct. Sess., p. 33). Section 2 of the law states:
"To the extent that funds are made available by the budget authorities pursuant to Section 50(j) of the General Appropriation Act of 1961, approved April 5, 1961, (Georgia Laws 1961, p. 356), or to the extent funds are made available for this purpose by any future law, the State Treasurer is authorized and directed to grant said funds to the several incorporated municipalities of this State on the following basis: ..."
The General Appropriation Act of 1961 set out above (Georgia Laws 1961, p. 386) in 50 (j) provides "For grants to municipalities to aid in the cost of operating said municipalities ... $5,000,000.00."

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The grants provided for in the above cited laws enacted by the General Assembly were pursuant to a constitutional amendment proposed by the General Assembly in a resolution adopted and approved on March 7, 1960 (Georgia Laws 1960, p. 1211), ratified on November 8, 1960, and codified as Georgia Code Ann. 2-5506, which provides as follows:
"Grant of State funds to municipalities.-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 prescribe. 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."
The General Assembly by a resolution proposed an amendment to the Constitution for the appropriation of funds for adequate system Qf roads and bridges in this State, which was approved March 17, 1960, and ratified on November 8, 1960, and is codified as Georgia Code Ann. 2-6204, as follows :
"App,ropdation to be for specific sums.- The appropriation for each department, officer, bureau, board, commission, agency or institution for which an appropriation is made, shall be for a specific sum of money, and no appropriation shall allocate to any object, the proceeds of any particular tax or fund or a part or percentage thereof.
"(b) An amount equal to all money derived from motor fuel taxes received by the State Treasurer in each of the immediately preceding fiscal years, less the amount of refunds, rebates and collection costs authorized by law, is hereby appropriated for the fiscal year beginning July 1, of each year following, 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; and for grants to counties for aid in county road construction and maintenance, as provided by law authorizing the State Treasurer to make such grants. Said sum is hereby appropriated for, and shall be available for, the aforesaid purposes regardless of whether the General Assembly enacts a General Appropriations Act and said sum need not be specifically stated in any General Appropriations Acts passed by the General Assembly in order to be available for such purposes. However, this shall not preclude the General Assembly from appropriating for such purposes an amount greater than the sum specified above for such purposes. The expenditure of such funds shall be subject to all the rules, regulations and restrictions imposed on the expenditure of appropriations by provisions of the Constitution and laws of this State, unless such provisions are in conflict with the provisions of this paragraph.

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And provided, however, that the proceeds of the tax hereby appropriated shall not be subject to budgetary reduction. In the event of invasion of this State by land, sea or air, or in case of a major catastrophe, so proclaimed by the Governor, said funds may be utilized for defense or relief purposes on the Executive Order of the Governor. The provisions of this amendment shall become effective July 1, 1961."
Georgia Code Ann. 95-1726, reads as follows:
"Streets in municipalities as links in State-aid system. Streets, or parts of streets, lying within the corporate limits of municipalities of this State and forming a continuation of, or a link in, the State-aid system of roads in this State shall be a part of the State-aid system of roads in this State for the purposes of construction and maintenance thereof by the State Highway Board from State highway funds allocated to such Board for the construction and maintenance of roads in this State."
Georgia Code Ann. 95-1738, reads as follows:
"Construction of State-aid roads within municipalities.- It is the intention of this law [ 95-1738 through 95-1742] that the construction of State-aid roads within the corporate limits of municipalities and the maintenance of the riding surface, road bed, and shoulders (where they exist) of portions of the State-aid system of roads, now or hereafter designated, which lie within the corporate limits of municipalities shall be the responsibility of the State Highway Board, to be constructed and maintained out of funds allocated for the construction and maintenance of State-aid roads in this State."
In view of the above constitutional amendments and statutes enacted by the General Assembly pursuant thereto, it is my official opinion that the constitutional amendment cited in 2-5506 provides that the Legislature may enact laws for the granting of State funds for municipalities of Georgia, and to provide the purpose or purposes therefor. The constitutional amendment set out in Code 2-6204 provides that an amount equal to all money derived from motor fuel taxes received by the State Treasurer in the immediately preceding fiscal years, less the amount of refunds, rebates and collection costs authorized by law, is hereby appropriated for the fiscal year beginning July 1, of each year following, 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.
It is my further official opinion that since "streets or parts of streets lying within the corporate limits of municipalities of this State and forming a continuation of, or a link in, the State-aid system of roads in this State" are a part of a "system of public roads in this
. "' State," that grants may be made to such municipalities for providing
and maintaining such streets, and that motor fuel tax revenues may be allocated or appropriated for such purposes pursuant to 2-6204
'

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as "providing and maintaining an adequate system of public roads and bridges in this State."
January 29, 1963
OPINION TO THE DEPARTMENT OF BANKING
This will acknowledge and reply to your letter asking 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?"
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 Georgia Code Ann. 13-2023 (a). That section clearly states that such "obligations of the State" are not subject to the limitations therein stated.
That portion of 13-2023 pertinent to this question 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 Owner's 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)
Only question one, then, remains to be answered.
The Constitution of Georgia, Article VII, Section VI, Paragraph I(a), as amended, 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
, .. /t.C'. J!Q / 81t.... i/":J'i,f.
/

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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 Appropriation 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 entered 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 effedive date of this amendment which said lease contracts constitute security for bonds or any other obligations here:tofore 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 appropriation 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 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 ere-

3.1
ated 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 to say that the bonds of an Authority are direct obligations of the State.
However, I am of the opinion that by virtue of the constitutional provisions herein referred to, the lease contracts, and by virtue of 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 the supervision of the Department of Banking 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 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)
January 29, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your inquiry concerning the liability of the Georgia Development Authority for payment of intangible taxes on

32
all intangible property owned including "Long Term" Real Estate Mortgage Notes.
Sections 62-1501 through 62-1505 of the Georgia Code Annotated contain the statutory provisions for the creation of the Georgia Development Authority. The aforesaid code sections do not provide for Intangible Tax exemption of said Authority.
However 92-201 provides, in part:
"Property exempt from taxation. - The following described property shall be exempt from taxation, to wit: All public property; ..."
Therefore the question we must resolve here is whether the intangible property owned by the Georgia Development Authority is in fact "public property" within the intent and purview of the preceding code section.
The Supreme Court of Georgia in the recent case of Sigman v. Brunswick Port Authority, 214 Ga. 332 (1958), were of the opinion that property owned by the Brunswick Port Authority was public property and the Brunswick Port Authority Act was not violative of Art. 7, Sec. 1, Par. 4 of the Constitution of the State of Georgia. The Court held:
" ... No private interest exist in the property of the authority. The members thereof may not use it for private gain or income. The authority holds title for the benefit of the State and the public, and the authority is an instrumentality of the State or a subordinate public authority or corporation of the State . . ." 214 Ga. 332, 335.
In view of the above cited authorities, I am of the opinion that the Georgia Development Authority is exempt from the intangible tax on its property including its direct long term mortgage notes. Of course, the holder of long term mortgage notes is not exempt from paying intangible taxes on same when the Georgia Development Authority merely guarantees or insures payment.
January 29, 1963
CASH BONDS
Pursuant to your recent inquiry concerning the posting of a cash bond in the Traffic Court of Atlanta to enable you to appeal from an adverse decision of that Court, this is to advise that the Charter of the City of Atlanta provides for appeals from the Traffic Court in the same manner as writ of certiorari is permitted under existing State law.
The applicable State statute is found in Georgia Code Ann. 19214, which reads as follows:

33
"19-214. (5192) Supersedeas in criminal cases.-Any person who has been convicted of any criminal or quasi-criminal offense, or violation of any ordinance, in any county court, police court, municipal court, by whatsoever name called, or any other inferior judicatory (except constitutional city courts) exercising criminal or quasi-criminal jurisdiction, who shall desire a writ of certiorari to review and correct the judgment of conviction in said case, shall be entitled to a supersedeas of the judgment upon the following conditions: He shall file with the clerk of said court, or, if no clerk, with the judge thereof, or with the commissioners if it be a court presided over by commissioners with no clerk, a bond payable to the State, or, if the conviction be in a municipal court, to the municipality, in amount and with security acceptable to and to be approved by the clerk, judge, or majority of the commissioners, as the case may be, conditioned that the defendant will personally appear and abide the final judgment, order, or sentence upon him in said case. Said bond, if payable to the State, may be forfeited in the same manner as any other criminal bond in any court having jurisdiction; if payable to the municipal corporation, it may be forfeited according to the procedure prescribed in the municipal ordinance or charter; or it may be sued upon in any court having jurisdiction. Upon the giving of said bond the defendant shall be released from custody in like manner as defendants are released upon supersedeas bonds in criminal cases where a writ of error has been obtained. (Georgia Laws 1902, p. 105; 1909, p. 148.)"
You will note from a careful reading of this section that the bond requirements do not specify the posting of property bond, but says only the bond should be "in amount and with security acceptable to and to be approved by the clerk." Apparently there would be no prohibition against a person signing his own bond and depositing the required security in cash. However, whether this is done or not addresses itself to the sole discretion of the clerk who must approve the bond.
January 30, 1963
DIVORCE
This will acknowledge your letter asking residency requirements under Georgia law for divorce proceedings which may be filed by military personnel.
There is a constitutional provision in the State of Georgia on the subject of venue in divorce cases which includes provision for a resident of any United States Army Post or Military Reservation within the State of Georgia. This constitutional provision is found in Georgia Code Ann. 2-4901, which reads as follows:

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"Divorce cases. - Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this state, then in the county in which the plaintiff resides, provided, that any person who has been a resident of any United States Army Post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States Army Post or military reservation."
Statutory law on this subject, which also includes provision covering a resident of any United States Army Post or Military Reservation within the State of Georgia, is found in Georgia Code Ann. 30-107 and reads as follows:
"Period of residence in State for petitioner or defendant.No court shall grant a divorce of any character to any person who has not been a bona fide resident of the State six months before the filing of the application for divorce: Provided, that any person who has been a resident of any United States army post or military reservation within the State of Georgia for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation: Provided, further, that a nonresident of Georgia may bring suit for divorce in the county of residence of the defendant against any person who shall have been a resident of Georgia and the county in which suit is brought for a period of six months prior to the filing of the application for divorce."
We believe that these provisions of the Constitution and the statute are self-explanatory.
January 31, 1963
PROPERTY TAXATION
This is in reply to your letter in which you ask whether or not raw material, unfinished goods, and goods in transit are taxable where the same are owned by a corporation domiciled and having its principal place of business in the county.
Georgia Code Ann. 92-101 provides as follows:
"All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided by law." (emphasis added)
Georgia Code Ann. 92-6208 provides:
"All persons, companies, and corporations except railroad, telegraph, telephone, express, sleeping and palace car, and such other companies as are required to make returns of the value

35
of their properties and franchises to the State Revenue Commissioner under the provisions of sections 92-2301 to 92-2309, 92-5901, and 92-5902, conducting any business enterprise upon realty not taxable in the county in which such persons reside or the office of the company or corporation is located, shall return for taxation their stock of merchandise, raw materials, machinery, livestock, guano, commercial fertilizer, and all other personalty employed in the operation of such business enterprises, together with the manufactured goods and all other property of such business enterprises, and notes and accounts made and the money used in the prosecution of such business enterprises on hand at the time for the valuation of property for taxation, including all personalty of whatsoever kind connected with or used in such enterprises in any manner whatsoever, in the county in which is taxable the realty wherein such business enterprises are located or carried on: Provided, that the agent in this State of any person, firm, or corporation resident without this State, who shall have on hand and for sale, storage, or otherwise, as such agent, merchandise or other property, including money, notes, accounts, bonds, stocks, etc., shall return the same for taxation to the tax receiver of the county wherein the same may be situated, to be taxed for State and county purposes as other property in this State is taxed." (emphasis added)
An examination of these code sections would, of course, lead anyone to the conclusion that all property not specifically exempted from taxation is taxable and must be returned for taxation. This would include raw materials, goods in process, and goods in transit owned by the taxpayer.
There are many opinions by our Courts and others which seem to state that property in transit is not subject to ad valorem taxation, but when properly construed these cases stand for a different proposition, and actually state that property does not acquire a new tax situs while in transit. Property passing through a state would not, therefore, be taxable in that state but would, under provisions of law such as we have in Georgia, be taxable to the Georgia corporation so long as they are still owned by the Georgia corporation. A Georgia corporation is liable for all its property, no matter where located, whether the same be in this State or another state. See Georgia Code Ann. 92-102; 7 VA. L. REV. 167, 245, 497 (1920).
You have asked my opinion as to whether or not personal property owned by a bank must be returned for ad valorem taxation. I believe that this question is answered in the case of the City of Moultrie v. Moultrie Banking Co., 177 Ga. 714 (1932), in the negative. The only property of a bank that is taxable apart from its shares is the real estate owned by the bank. The shares of the stockholders are taxed at their full market value under Georgia Code Ann. 92-2406.

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February 4, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
In your letter you inquire as to the proper method of handling situations in which parole is followed by a violation for which the offender receives an original sentence such as "3-5 years, serve 12 months, balance suspended."
The first situation presented by your letter is one involving a sentence such as the one quoted above. You state that you consider the offender for parole after he has completed one-third (or four months) of the 12 month period of confinement. This is proper since the original sentence required confinement for only one year.
Next you state that when the offender is paroled and shortly thereafter commits another offense and is returned to the state penitentiary system, and following notice to you by the Department of Corrections, the parole is revoked on the remaining portion of the 12 months' sentence. This, too, is proper under Georgia Code Ann. 77517, the last sentence of which reads:
"A violation of the terms of parole may render the parolee liable to arrest and return to prison to serve out the term for which he was sentenced."
The parole can be rescinded even without a hearing as required by 77-519 if the parolee has been convicted of any crime, or has pleaded guilty to any crime in a court of record, which would cover practically all of your cases.
Then you ask if the State Board of Pardons and Paroles can remand the offender to prison on the 5-year maximum sentence where it has been suspended by the court. This question must be answered in the negative since 27-2714 provides:
"27-2714. Same; suspended sentence to have effect of placing defendant on probation.- In all criminal cases in which the defendant shall be found guilty, or in which a plea of guilty or plea of nolo contendere shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended, such provision shall have the effect of placing such defendant on probation as provided in this law (Sections 27-2702 through 27-2723): Provided that nothing in this section shall apply to abandonment or bastardy cases. (Acts 1956, pp. 27, 33; 1960, pp. 1148, 1149.)"
The above code section places the question of revocation as to the remaining portion of the sentence before the court granting the probation. See Georgia Code Ann. 27-2713. The language of this section indicated that an affirmative answer is required to the question, "Can the court which imposed the original suspended sentence revoke the suspension or reimpose the 3-to-5-year sentence?"
As you observe in your letter, it is entirely possible that a person receiving the type of sentence under discussion may be subsequently

37
paroled and may commit a crime and be tried in a court different from that which imposed the suspended sentence initially. If the offender is still on parole granted by your Board, I envision two possibilities: First, the amount of time remaining on the parole may be rescinded by you: Secondly, the time remaining on the original sentence, if any, which has been treated as a probated sentence, may be revoked by the court granting the probation even though the language used in the original sentence is "balance suspended."
February 7, 1963
OPINION TO THE GOVERNOR
In your request you asked to be advised as to the nature and extent of the powers of arrest of alcoholic control agents employed by the Department of Revenue.
The "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" (Georgia Laws 1937-38 Extra Session, p. 103, unofficially codified as Georgia Code Ann. 58-1001 through 58-1082) empowers State alcohol control agents in certain cases to seize illegal liquors. The Act also empowers State alcohol control agents to enter upon the premises of persons engaged in the liquor business for the purpose of inspection of the premises and all related books and records. These are Revenue enforcement provisions and do not confer arrest powers.
An examination of the entire Act reveals no direct authority therein for arrest powers for State alcohol control agents. I am informed that as a matter of practice all State alcohol agents are made deputy sheriffs of some county within the State.
Section 24-2811 of the Georgia Code of 1933 allows for the appointment of deputies by sheriffs and places no restriction thereon as to the number that may be appointed. By virtue of being a deputy sheriff, a State alcohol control agent becomes a general agent of the sheriff appointing him. Crawford v. Howard, 9 Ga. 314. Under his authority as a deputy sheriff, a State alcohol control agent may perform all the duties of a sheriff and therefore may arrest in any county in Georgia without reference to the county of his residence. Georgia Code Ann. 27-209.
In summary, it can be said that by virtue of being appointed deputy sheriff, State alcohol control agents have all the arrest powers of the sheriff and are also subject to all provisions of the law relative to arrests in the same manner as are sheriffs.
Although outside the scope of the opinion you requested, I might suggest that the law should be amended so that these agents have full arresting power in the performance of their duties. Otherwise, they may be controlled by the whims of the sheriffs who deputized them. I also suggest that such an amendment could contain provisions to pay directly to the State any fees which these agents would become entitled to.

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February 7, 1963
OPINION TO THE GOVERNOR
You ask my opinion concerning your authority to order members of the Georgia State Patrol and/or members of the Georgia Bureau of Investigation to render assistance to a Superior Court Judge upon his request.
The 1937 Act which created the Georgia State Patrol specifically limited the arresting powers of the members of the Patrol to offenses arising from violation of traffic laws, or laws regulating the use ownership and control of motor vehicles, or to offenses committed upon the highways of the State.
However, a proviso was added to this limitation on arrest, as follows:
"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." Georgia Code Ann. 92A-242.
(Inasmuch as the last sentence of code 92A-302 reads, "The members of the Bureau [of Investigation] 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," the holdings of this opinion apply equally to members of the Uniform Division and members of the Bureau of Investigation.)
The language of the proviso above quoted makes it clear that in certain situations the law enforcement powers of members of the State Patrol could be extended on order from the Director of Public Safety. The Director himself, "in unusual circumstances", upon proper request, is authorized by this section to extend the powers. Acting alone, the Director would first have to receive the request for assistance and then determine the existence of "unusual circumstances" before he could validly exercise the discretion granted him. In this case, the increase in the law enforcement powers or the extension thereof would be determined and limited by not only the existing circumstances but also the nature of the request for assistance and would possibly not be blanket in scope.
On the other hand, if the Governor should determine the need for extending the law enforcement powers of the Patrol, the limitations set forth above which apply to the Director would not prevail as a matter of law. This is not to say that the Governor would not consider these factors when framing his order to the Director of Public Safety,

39
but he would not be bound by the requirements of proper request coupled with unusual circumstances.
Having determined that the Legislature has granted to the Governor and the Director of Public Safety the authority to extend the law enforcement duties of the State Patrol, the question remains as to what limitation, if any, arises as a matter of law. Georgia Code Ann. 92A-242 contains the following language:
"To render assistance in any other criminal case, or in the prevention of violations of law, or in detecting and ap,prehending those violating any criminal laws of this, or any other state, or the United States." (emphasis supplied)
It is readily seen from the broad language used by the Legislature that the only restriction imposed is that the offense be criminal. The Governor is thereby empowered through the Director of Public Safety to order the members of the Patrol to do everything necessary to prevent law violations and to apprehend those violating any criminal laws.
Black's Law Dictionary defines apprehension as:
"The seizure, taking or arrest of a person on a criminal charge. The term 'apprehension' is applied exclusively to criminal cases, and 'arrest' to both criminal and civil cases."
From the foregoing it must be concluded that the Governor is authorized to order the Director of the Department of Public Safety to direct members of the Georgia State Patrol to make arrests for violations of the laws of this State. And this would be true even in the absence of any request for assistance emanating from the governing authorities of the counties or municipalities involved.
February 12, 1963
OPINION TO THE DEPARTMENT OF BANKING
You requested my opinion as to an amendment to the charter of the Commercial Trust Company dealing with the issuance of preferred stock.
Section 22-1828, Georgia Code Annotated, provides in part that subject to charter limitations, "every corporation shall have the following powers:
(i) To issue one or more classes of stock, with or without par value with such rights and characteristics as are described in its charter or any amendments thereof."
The Georgia Supreme Court has stated:
"If there be no express prohibition against such issue in the charter, a corporation has power to issue preferred stock, keeping within the amount of stock limited by the charter." Georgia Power Co. v. Watts, 184 Ga. 135, 142 (1937).

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This being so, it would be permissible for a trust company to amend its charter so as to authorize specifically the issuance of preferred stock, especially where there is approval of all the shareholders, and where there are no statutes restricting such issuance of preferred stock, as is the case with reference to trust companies.
February 13, 1963
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I have your letter in which you state that the Experiment Stations of the University System and some of the institutions wish to sell standing timber from tracts of land under their management. You further state:
"These timber and pulpwood sales have been made under authority of an executive order of the Governor through the State Purchasing Department under such rules and regulations as that Department may determine. It would be to the advantage of the institutions and the System if they could handle the sales of this timber and pulpwood as they now handle the sale of other research products and other items of a like nature.
"In view of the fact that the Board of Regents is a constitutional board with authority to manage, control, and operate the University System, the Board has asked whether it has the legal power to authorize the institutions to sell forest products without going through the Purchasing Department."
You have asked whether the Board has the legal power to authorize the institutions to sell forest products without going through the Purchasing Department.
Obviously the University System, in selling standing timber from tracts of land under its management, has operated pursuant to a memorandum issued by Governor S. Ernest Vandiver under date of May 1, 1962 as follows:
"May 1, 1962-To: All Department Heads
From: S. Ernest Vandiver, Governor
"A number of Department Heads have inquired as to the procedure to be followed in the cutting of timber on Stateowned property.
"In this connection, I would suggest that you obtain the services of the Director of the Georgia Forestry Commission to act in an advisory capacity to your Department in order to assure the use of standard and sound forestry practices and management in harvesting the forest products therefrom.

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"For a more detailed discussion of the procedure which should be followed in the cutting of timber your attention is directed to an Opinion of the Attorney General dated September 25, 1952 (Opinions of the Attorney General 1952, p. 178).
/s/ S. Ernest Vandiver
S. ERNEST VANDIVER"
The official opm10n of the Attorney General, dated September 25, 1952, referred to in the above memorandum issued by former Governor S. Ernest Vandiver, is based upon the following conclusion as stated in the opinion:
"I have reviewed the laws relating to the State Department of Education and do not find any express grant of authority to this agency to sell or dispose of timber, forest products or any other State property."
Based upon such premise in said opinion, I set out the method as prescribed and provided by the General Assembly, unofficially codified as 91-804 of the Georgia Code Annotated, under which unserviceable public property may be sold or other disposed of. I stated that:
"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."
In the past the Governor has directed the Board of Regents to provide for the disposal and sale of such properties through the Supervisor of Purchases under such rules and regulations as the Supervisor of Purchases may provide.
The opinion issued by me on September 25, 1952, the method of selling and disposing of unserviceable property as set out therein, and the method that has been heretofore followed of having such properties sold under executive order by and through the Supervisor of Purchases do not apply to the Board of Regents or to the Regents of the University System of Georgia. As I stated in an official opinion rendered on December 20, 1962, the Regents of the University System of Georgia, pursuant to 32-141 of the Georgia Code Annotated, are given clear and specific powers and authority to sell or otherwise dispose of property subject to the approval of the Governor, whenever the Board of Regents may deem such sale or other disposition to the best interest of the University System and provided that the Board of Regents shall first determine that such property can no longer be advantageously used in the University System.

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I further set out in said opinion the manner and method of executing all conveyances of sale or other disposition of properties, and stated that the proceeds arising from any such sale shall be used for the interest of the University System and its branches or for the payment of any debts thereof as the Regents may determine.
I stated in that opinion why the Regents were entitled to the use of said proceeds, and that in my opinion the proceeds should not be paid into the State Treasury since there was no existing bonded debt of the State of Georgia, and that the provisions of 2-5608, are not applicable to the sale of property owned by the Regents of the University System of Georgia.
It is my official opinion that property held by the Regents of the University System of Georgia 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 be in the best interests of the University System, and provided that the Board of Regents shall first determine that such property can no longer be advantageously used in the University System in accordance with 32-141, 32-142, and 32-143 of the Georgia Code Annotated; and it is also my opinion that it is not necessary to obtain an executive order of the Governor or to sell the property through the Supervisor of Purchases under the provisions of 91-804 of the Georgia Code Annotated.
I would suggest that the Board of Regents, prior to the adoption of a resolution declaring that such property can no longer be advantageously used in the University System, obtain the services of the Director of the Georgia Forestry Commission in an advisory capacity, to assure the use of standard and sound forestry practices and management in harvesting forest products.
February 14, 1963
OPINION TO THE GOVERNOR
In response to your letter requesting a clarification of the opinion furnished you February 7, 1963, in which I advised that Georgia Code Ann. 92A-242 authorizes the Governor to order the Director of the Department of Public Safety to direct members of his Department "to render assistance in any . . . criminal case," please be advised that it is also my opinion that the assistance rendered could be the assistance of a Superior Court Judge in serving bench warrants.
With reference to the Governor the Constitution in Article V, Section I, Paragraph XI, states:
"He shall take care that the laws are faithfully executed, and shall be a conservator of the peace throughout the State."
These are broad powers. The provision of 92A-242 is merely one

43
expression of the Legislature as to how these broad powers may be performed. It should not be considered exhaustive by any means.
Section 27-801 of the Georgia Code Annotated states:
"A bench warrant is one issued by a judge for the arrest of one accused of a crime by a grand jury."
It is clear then from this Code definition that members of the State Patrol and/or Georgia Bureau of Investigation could be authorized to execute bench warrants and arrest the accused since by definition a bench warrant follows a criminal indictment by the grand jury and the fact of criminality is the only restriction imposed by 92A-242.
The Code definition of bench warrant is narrower in scope than the one contained in Black's Law Dictionary which reads as follows:
"Process issued by the court itself, or 'from the bench' for the attachment or arrest of a person; either in case of contempt, or where an indictment has been found, or to bring a witness who does not obey the subpoena."
Black's further distinguishes between civil and criminal contempt, saying:
"The former are those quasi contempts which consist in the failure to do something which the party is ordered by the court to do for the benefit or advantage of another party to the proceedings before the court, while criminal contempts are acts done in disrespect of the court or its process which obstruct the administration of justice or tend to bring the court into disrespect. A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court was issued, and a fine is imposed for his indemnity. But criminal contempts are offenses or injuries offered to the court, and a fine or imprisonment is imposed upon the contemnor for the purpose of punishment."
In practice the term "bench warrant" has become more closely akin to the warrant described in Black's than to the one contained in the Georgia Code. However, it is my opinion that any warrant issued by the Court itself resulting from a case of criminal contempt or where a misdemeanor case is proceeding upon an accusation or to bring in a witness who has not obeyed a subpoena issued in a criminal case could properly be served by members of the Department of Public Safety even though they would not be "bench warrants" under the Code's narrow definition.
In addition to the question of serving bench warrants, you also ask whether or not you are authorized to assist a Superior Court Judge in the manner previously discussed, "in otherwise enforcing the orders of his Court." Again, I state that you have such authority if the orders are designed in any way, either directly or indirectly, to aid the enforcement of the criminal laws within the jurisdiction of the Court issuing the orders.

44
The distinction must be drawn between orders which are strictly civil in nature and those which have their origin in some sort of criminal proceeding. Section 92A-242 does not contemplate the rendering of assistance in matters such as service of process or civil writs which have no connection with criminal enforcement.
I certainly hope that this letter has dispelled any areas of doubt concerning your authority to order the members of the Department of Public Safety to assist law enforcement in general and the manner and modes in which they may be employed.
February 15, 1963
OPINION TO THE DEPARTMENT OF COMMERCE
This will acknowledge receipt of your letter in which you request the opinion of this office as to the authority of Georgia counties to issue Revenue Bonds for Industrial Development purposes without specific constitutional authority having been granted. You specifically refer to the 1957 Amendment (Georgia Laws 1957, p. 410) which purports to authorize the issuance of Revenue Bonds for "the purchase of land and the construction thereon of facilities for lease to industries so as to relieve abnormal unemployment conditions."
The Revenue Bond Law originally passed in 1937 and amended in 1939 was again amended in 1957 as above indicated. It purports to authorize the issuance of revenue-anticipation bonds by any municipality (as defined in the Act) for certain enumerated undertakings which, by the 1957 Amendment, included "the purchase of land and the construction thereon of facilities for lease to industries so as to relieve abnormal unemployment conditions."
While I can find no instance in which the constitutionality of the 1957 Amendment has been tested, I call your attention to the restriction in Article 7, Section 5, paragraph 1 of the Constitution of Georgia which prohibits a county or municipality "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."
Your attention is also called to the case of Tip,pins v. Cobb County Parking Auth., 213 Ga. 685 (1957), in which the Supreme Court ruled that the Amendment to the Revenue Certificate Act of 1937, under which the Parking Authority was sought to be established, was not a part of the original act and, therefore, did not fall within the authority granted by Article 7, Section 7, paragraph 5 of the Constitution (Georgia Code Ann. 2-6005).
In the Tippins case the Court held that "a county cannot do by indirection that which it could not do directly for there can be conferred upon an agent no greater power than that possessed by the principal (Citing Beasley v. DeKalb County, 210 Ga. 41 (1953)), and

45
said: "Under the authority of the Beasley case, supra, we hold that the present Act, undertaking to create the Cobb County Parking Authority and authorizing the issuance of revenue certificates or bonds, contravenes and violates Article 7, Section 7, paragraph 5 of the Constitution of Georgia."
In my opinion, should the constitutionality of the 1957 Amendment to the Revenue Bond Law be attacked, the Supreme Court of Georgia would follow the rulings laid down in the Beasley case and the case of Tippins v. Cobb County Parking Authority.

February 19, 1963

OPINION TO THE JOINT SECRETARY, STATE EXAMINING BOARDS

This will reply to your letter in which you ask:

"(1) May a prescription calling for a legend drug classified by the F. D. A. as a dangerous drug, be refilled?

"(2) May a prescription with authorization to refill the same, issued by a duly licensed physician, for a non-dangerous
drug be refilled after the death of the physician issuing the prescription?"

1. Section 42-709 of the Georgia Code Annotated makes it illegal to dispense any of the following drugs without the written prescription of a licensed physician, and forbids the refilling of a prescription for these drugs except on the authorization of the prescribing
physician:

amytal
luminal verona!
barbital acid diethyl
barbituric
sulfanilimide prontylin
neoprontosil phenobarbital sulfapyridine
sulfathiazol pyramidon

aminophrine
atophan chloral paraldehyde abortifacient such as ergot,
cotton root, pennyroyal
savin apiol cantharides amphetamine or preparation con-
taining amphetamine.

preparation containing amphetamine
hormones systhetic natural;
anti-fat preparations to include thyroid, thyroxin; and such
other drugs declared by the Fed. Food and Drug. Admr., and the
Ga. Pharmacy Board to be dangerous.

In view of the language contained in 46-709: "No such prescription shall be refilled except upon the authorization of the physician who prescribed it." and the definition of "physician" in 42-711
as "a person authorized by the laws of this State to practice medicine," I am of the opinion that 42-709 does not contemplate that

46
a pharmacist is authorized to fill a prescription for a dangerous drug after the death of the prescribing physician unless the prescribing physician has clearly authorized on the prescription the extent to which said prescription is to be refilled.
In this connection, your attention is called to the provision in the Uniform Narcotic Drug Act ( 42-807) that neither a written nor an oral prescription calling for narcotic drugs shall be refilled.
2. The answer to your second question would appear to depend upon the wording of the prescription itself. If the prescription for a non-dangerous drug indicated the extent to which same was to be refilled, then the pharmacist, in my opinion, would be authorized to refill it to such extent regardless of whether the prescribing physician was still living or not.
February 19, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to reply to your letter requesting my official opinion as to the propriety of a waiver of the penalty on the intangible tax where the holder of the long term security instrument apparently acted in good faith.
You will recall, in the situation giving rise to the question, that the holder of the instrument mailed a check for the intangible taxes shortly after acquiring the property, but the Tax Commissioner, being unfamiliar with his duties, held the check several months without presenting it to the bank for payment.
The law in our State provides in Georgia Code Ann. 20-1004:
"Bank checks are not payment until themselves paid . . ."
The correspondence made by the holder is sufficient for us to assume that he acted in good faith at all times and that the delay in paying the intangible taxes was due to the Tax Commissioner's inexperience. Consequently, I am of the opinion that the holder's actions are within the intent and purview of Georgia Code Ann. 92-171, in which the State Revenue Commissioner is authorized to waive such penalty if he determines that the failure to pay the tax was through ignorance of the law or inadvertence, and not in bad faith.
February 19, 1963
STATE REVENUE COMMISSION
I am pleased to acknowledge your letter requesting an opinion on the following question: May the State Revenue Commissioner

47
enter into a rental contract for business machines for a period of eight years?
In order to answer this question we must first decide whether a State Department head may bind his successor in office by entering into a contract which extends beyond his own term.
The general rule of law applicable to the above situation is that "the power of public officers to enter into contracts which extend beyond the terms of their offices depends primarily on the extent of their authority under the law. A distinction has been drawn between two classes of powers, governmental or legislative and proprietary or business. In the exercise of business or proprietary powers a board or department head may contract as any individual unless restrained by statutory provisions to the contrary. . . ." 43 AM. JUR. Public Officers, 292 (1942).
37 AM. JUR. Municipal Corporations, 66 (1941), states that:
"Where the contract involved relates to governmental or legislative functions, a city council unless conferred with express statutory authority, cannot make a contract extending beyond its own term. But in the exercise of the business powers of a municipal corporation, the municipality and its officers are controlled by no such rule and they may lawfully exercise these powers in the same way as an individual. . . ."
Also, 149 A.L.R. 341 states: "Whether a board gives a lessor, a lease on public property or accepts as lessee, a lease on property from private persons, the validity of such a lease as against subsequent boards is usually dependent upon the reasonableness of the transaction. . . ."
In connection with these general rules of law, see Heberer v. Chaffee County, 88 Colo. 159, 293 P. 349 (1930) ; Liggett v. Kiowa County, 6 Colo. App. 269, 40 P. 475 (1895) ; Bennett v. Petroleum County, 87 Mont. 436, 288 P. 1018 (1930) ; Minamax Gas Co. v. State ex rel McCurdy, 33 Ohio App. 501, 170 N.E. 33 (1929).
In the case of Johnson v. State, 107 Ga. App. 16, 19 (1963), it was held that "A municipal corporation acts in a proprietary rather than a governmental capacity in operating an electric distribution system. The restrictions placed upon municipal corporations by Code 69-202 relates only to its governmental functions. Therefore, there is generally no objection to a contract by a municipal corporation for a supply of electrical power which extends beyond the term of office of the officers making the contract. The only restriction is that it must be reasonable in length of time for which it is to extend. . . ."
Since I am of the opinion that the leasing of these business machines is a proprietary or business function, and since there is no statutory provision to the contrary, it is my opinion that the State Revenue Commissioner has ample authority to execute such a lease agreement for a period of eight years. The length of time involved could certainly not be classified as unreasonable.

48
February 19, 1963
SALES AND USE TAX
This is in reply to your letter in which you raised the question whether it is lawful to tax bowling and the rental of bowling shoes, and in which you stated that there are cities in Georgia in which there is no such tax on bowling or the rental of bowling shoes.
Your attention is invited to the following provisions of the Georgia Retailers and Consumers Sales and Use Tax Act (Georgia Code Ann., Chapter 92-34A):
"Section 92-3402a. 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:
* * * *
(c) Every lessee or rentee of tangible personal property in this State shall be liable for a tax thereon at the rate of three per cent of the gross lease or rental charge therefor..
* * * *
(e) Every person purchasing any service or services within this State which under the terms of this Chapter are included within the meaning of the term 'retail sale' or 'sale at retail' shall be liable for tax thereon at the rate of three per cent of the gross charge or charges made therefor...."
The term "retail sale" or "sale at retail" is defined in 92-3403a c (1) (c), which expressly provides that it shall include "[s]ales of tickets, fees or charges made for admission to . . . bowling alleys. . . ."
From this you can see, contrary to the popular notion that the Sales and Use Tax Act only applies to the sale of property, that it imposes a tax upon the rental, as well as the sale, of tangible personal property and, also, upon the sale of those services specifically mentioned therein. Therefore, it seems clear that the rental of bowling shoes, which are a form of tangible personal property, and the charges made for bowling are taxable. Whether or not they should be is, of course, a matter for the legislature, not any other branch of the government.
With reference to your claim that some operators of bowling alleys do not collect the tax, I can only say that, if that is true, they are not complying with the law.

49
February 20, 1963
VOTER REGISTRATION
Thank you for your letter, inquiring as to when persons should be permitted to apply for voter registration and as to how often the Board of Registrars is required to meet to examine such applications. You state that in your County the registration cards are maintained in the office of the Tax Commissioner.
Section 34-106 of the Georgia Code Annotated (Georgia Laws 1958, p. 273), provides that the tax commissioner shall be a deputy to the board of registrars and shall perform the duties required of him under Chapter 34-1 and that he may, with the assent of the board, designate one or more of his own deputies to act as additional deputies. Section 34-110 (Georgia Laws 1958, p. 276) provides that the registrars shall keep the registration cards at the tax commissioner's office where one or more of them or their deputies shall be stationed for the purpose of taking applications for registration during the time such office is open at regular hours. Section 34-111 (Georgia Laws 1958, p. 276) provides that during the period while the general election list is being prepared, the registrars may suspend the operation of taking applications from those desiring to vote in subsequent elections but that the office shall be kept open at least one day and the same day in each week during such period for receiving applications.
In view of these provisions, it is my opinion that persons should be permitted to apply for voter registration during the regular office hours of each day on which your Tax Commissioner opens his office to serve the public, except that the receiving of applications for voter registration may be limited to one day in each week as provided by 34-111.
As to your second inquiry, 34-114 (Georgia Laws 1958, p. 277) provides that all registration cards of applicants shall be turned over to the registrars and examined by them within ten days from the date of the application. Consequently, it is my opinion that the board of registrars is required to meet for the purpose of examining such applications within ten days from the date of each application, but no more frequently for this purpose.
February 20, 1963
INTANGIBLES TAX
You requested an opinion on the following:
(a) Are shares of stock in a foreign corporation owned for life by a nonresident devisee subject to intangible taxation by the State of Georgia where the remainderman is a resident of Georgia?
(b) Is the Executor of the deceased remainderman required to file a return on the remainder interest in the shares of stock?

50
Georgia Code Ann. 92-117.2 provides in part:
"92-117.2. Property Tax on Stocks.-A property tax is hereby levied for the year 1942 and annually thereafter at the rate of $1 upon each $1,000 of the fair market value of all stocks in foreign corporations and all stocks in foreign domesticated corporations (except those hereinafter exempted from tax by this section) as of the 1st day of January, without deduction of any indebtedness or liability of the taxpayer. All stocks in foreign corporations and all stocks in foreign domesticated corporations (except those hereinafter exempted from tax by this section) shall be and are hereby declared taxable property, except shares of stock explicitly excluded under the terms of 92-114, 92-115. . . ."
An examination of 92-101 through 92-185 does not reveal an Xplicit exemption that would apply to the remainderman. Consequently, the State of Georgia is entitled to receive taxes on whatever value the remainder interest is determined to have.
The remainder interest in this case is a vested remainder in that it is limited upon the happening of a necessary event. Georgia Code Ann. 85-703. If the remainderman shall die before the time arrives for possessing his estate in remainder, his heirs shall be entitled to a vested remainder interest. Georgia Code Ann. 85-704.
Reviewing the above-cited authorities, I am of the opinion that the Executor of the estate of the deceased remainderman is required by law to file a return itemizing the shares of stock at such value as may be equitable with the value of his interest.
February 26, 1963
OPINION TO THE DEPARTMENT OF REVENUE
It is my pleasure to acknowledge your letter requesting my opinion as to the length of time required for County Tax Commissioners to maintain tax returns and other records relative thereto.
Formerly, an Act of the Legislature in 1924, as amended in 1931, provided that "the several tax collectors shall keep in their respective offices as a permanent record one copy of the tax digest and all case books and license receipt books, . . ." See 92-5208 of the Georgia Code Annotated. The language used in the foregoing code section is such as would compel the Tax Commissioner to keep the aforesaid records in his office.
However, Georgia Code Ann. 92-5208, as cited above, is supplemented by 40-805:
"40-805. Preservation of books, records, etc.-Any State, county or other official is hereby authorized and empowered in his discretion to turn over for permanent preservation in the Department of Archives and History any official books,

51
records, documents, original papers, manuscript files, newspaper files, portraits, and printed volumes, not in current use in his office. The Secretary of State shall provide for the preservation of said materials, and when so surrendered, copies thereof shall be made and certified by the Director upon the application of any person interested, which certification shall have the same force and effect as if made by the officers originally in custody of them, and for which the same fees shall be charged. (Acts 1918, p. 140; 1931, pp. 7, 38.)"
Therefore, I am of the opinion that the law does not provide that the Tax Commissioners should retain the records in their offices for a definite length of time. The law simply states that the records must be kept permanently but that all records not currently in use may be turned over to the Director of the Department of Archives for permanent preservation.
February 26, 1963
INTANGIBLES TAX
I am pleased to acknowledge your letter in which you requested an opinion concerning the exemption of Federal savings and loan associations from the intangible tax imposed upon long-term real estate notes by the 1953 Act of the Georgia Legislature, page 379, as unofficially codified in 92-164 of the Georgia Code Annotated.
Part II, Section 1, of the Act of 1953 provides that building and loan associations and Federal savings and loan associations shall be taxed in the same manner and subject to the same exemptions as national banking associations. However, in the case of Fulton County Federal Savings and Loan Association v. Simmons, 210 Ga. 621 (1954), the Supreme Court held that the 1953 Act was divided into three parts and that the exemption provided for building and loan associations and Federal savings and loan associations was not applicable to the recording tax under Section 1, Part IV, of the Act.
The Court went on to recite Part I, Section 18, of the Act, which provides, in part:
"Notwithstanding any other provision of this Act to the contrary it is the intention of the General Assembly of Georgia that long-term notes secured by real estate shall be taxed."
The Court continued as follows:
"The exemption clause relied upon by the plaintiff does not refer back directly or by inference to this provision in Part I, Section 18.
"There is nothing to show a Legislative intent to disregard the provisions of Part I, Section 18, or of Part I, Section 12, both of which would be nothing more than surplusage if it was

52
intended by the General Assembly that Federal savings and loan associations should not pay the tax on long-term notes."
The decision in the Fulton County Federal Savings and Loan Association v. Simmons, supra, controls the law in this general area.
Consequently, I am of the opinion that Federal savings and loan associations are not exempt from paying intangible tax on longterm notes.
February 27, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to reply to your letter requesting my official opinion concerning the exemption from taxation of property owned by the Methodist Church in Lumpkin County, Georgia. As I understand it, this property, known as Camp Glisson, is used as a camp or recreational area for members of the church.
Let me state at the outset, since I do not have full and complete information regarding the use of the property and the disposition of any income received from its use, that the opinions expressed herein are, of necessity, based upon assumptions which I will have to make in the course of my remarks.
The Constitution of 1945 (Art. VII, Section 1, Par. IV) provides, in part, as follows :
"The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; ... provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders and corporations owning such property or to 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 with the above constitutional grant, exhaustively exercised this power to exempt. Georgia Code Ann. 92-201.
It is conceivable that the claim of exemption from taxation on this property could be predicated upon the supposition that (a) Camp

53
Glisson is a place of religious worship and (b) Camp Glisson is a charitable organization within the intent and purview of the Constitution of 1945 (Art. VII, Section 1, Par. IV) as well as 92-201. It is highly questionable that the courts of this State would hold that a place of worship as used in the preceding authorities is limited only to the auditorium or chapel of a church building in which religious services are regularly held. By the same token, it is highly questionable that the courts would hold that a church camp is not a place of worship. For we must assume that worship services are regularly conducted at Camp Glisson in conjunction with organized recreational activities for the physical and spiritual development of its guests. However, we may resolve the question posed above not solely on the grounds of its being a place of religious worship but on the additional grounds that Camp Glisson is a charitable organization.
In the case of Tharp'e v. Central Georgia Council of Boy Scouts of America, 185 Ga. 810 (1938), 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:
"The test is whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity." 185 Ga. at 813.
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 beneficience, 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 Chi Omega House Corp. v. Davison, 192 Ga. 124, 128 (1941), adopted the following language from People v. Alpha Pi, 326 Ill. 573, 158 N.E. 213 (1927), 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 inhabitants of a 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

54
growth and development of its church members is dedicated to a charitable use, and on the basis of the Mu Beta Chapter decision, that use is public if the camp is open 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. 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.
4. No benefit from the operation of the camp may inure to the benefit of any private individual or corporation in competition with free enterprise.
Consequently, it is my opinion that the property owned by the church, constituting Camp Glisson is exempt from Georgia ad valorem taxes.
March 4, 1963
GEORGIA BUREAU OF INVESTIGATION
Thank you for your letter regarding the recent action of the State Personnel Board in establishing a civilian class in pay grade for persons in the Georgia Bureau of Investigation.
We have discussed this matter with the Deputy Director of the State Merit System, who is familiar with the action of the Personnel Board, and we have also reviewed a copy of the directive of the Board issued as a result of its action.
You question whether the status of GBI agents would be changed as a result of the action of the Personnel Board.
The action of the Board in establishing a civilian class for pay grade was simply in response to a request from the Department of Public Safety that all GBI agents be placed in civilian status. The reasons for that request are contained in a letter dated January 25, 1963, from Captain L. E. Floyd, Personnel Officer of the Department of Public Safety, to Mr. E. L. Swain, Director of the State Merit System, in which Captain Floyd stated the following: "Due to the increased need for more traffic supervision on our highways, Colonel H. Lowell Conner, Director of this Department, has ordered that all GBI agents be placed in civilian status in order

55
that the full complement of uniform members in our Department may be available for traffic duty."
In order to emphasize the difference between the Uniform Division of the Department and the Bureau, the Personnel Board used the word "civilian" to designate the non-uniform group. Such words as "plain-clothes man" could just as easily have been used to designate GBI agents, and the use of the word civilian was not intended to alter in any way the duties, salaries, status with respect to pension rights and benefits, or any other aspects of the employment of members of the GBI.
The laws setting forth various duties, responsibilities, etc., of members of the GBI remain unchanged.
The conclusion in this unofficial opinion would be applicable to the Director of the GBI, Assistant Director, District Supervisor and agents, and to the salaries and subsistence and duties of each. It is also applicable to the agents of the Crime Lab who are members because of special qualifications under 92A-306.
For your information, I am enclosing copies of opinions dealing with these subjects dated January 2, 1962, March 9, 1962, and February 7, 1963.
March 4, 1963
OPINION TO THE PURCHASING DEPARTMENT
Your department requested my opinion whether the State of Georgia can legally purchase foreign-made drugs that, if manufactured in this country, would be covered by United States patents, and if there is no law on the subject, whether the Supervisor of Purchases has authority under 40-1921 of the Code to authorize or prohibit such purchases.
First, Georgia has no laws which protect a patent, this being entirely a federal affair. The general nature of a patent is to grant to a person or entity exclusive use, manufacturing rights, or disposition of a certain design, method, process or content which is sufficiently unique as to deserve such status, and which is not already, or has not been previously, under protection in favor of someone else. The protection is designed to act in favor of the patentor as against persons manufacturing identical or virtually identical items. The remedy lies against the infringer. It does not reach, or in any way affect, a purchaser or subsequent user of such item. Any attempt to require the buyer to determine whether there has been an infringement of a patent would be ludicrously unenforceable, and detrimental to free trade. Patent infringement suits have taken years for determination by the courts with batteries of experts assisting in the confusion. The effect of requiring the purchaser to make such a determination would impose unnatural restrictions and strangle free trade. Thus the federal patent laws do not pro-

56
hibit such a purchase, even where the drugs are manufactured in this country. Nor do United States patents have any extraterritorial effect except by treaty or other agreement with other countries. Thus, there is no law, of which I am aware, which prohibits such a sale.
There is a section (Georgia Code Ann. 40-1903) which requires. that preference be given to Georgia products:
"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."
However even this portion of the law requires such preference only when there is no sacrifice in price or quality.
As to whether the Supervisor of Purchases has authority to adopt a rule or regulation authorizing or prohibiting such purchases, I think a negative answer must be furnished. Executive officers have only such power as is granted them, and delegation of authority is not generally assumed in the absence of express indicia of such delegation. All rule making authority of the Supervisor of Purchases stems from 40-1921:
"The Supervisor of Purchases may adopt, modify or abrogate, rules and regulations covering the following purposes, in addition to those authorized elsewhere in this Chapter:
(a) Requiring monthly reports by State departments, institutions, or agencies of stocks of supplies and materials and equipment on hand and prescribing the form of such reports.
(b) Prescribing the manner in which supplies, materials, and equipment shall be delivered, stored and distributed.
(c) Prescribing the manner of inspecting deliveries of supplies, materials, and equipment and making chemical and/or physical tests of samples submitted with bids and samples of deliveries to determine whether deliveries have been made to the departments, institutions, or agencies in compliance with specifications.
(d) Prescribing the manner in which purchases shall be made by the Supervisor of Purchases in all emergencies as defined in 40-1917.
(e) Providing for such other matters as may be necessary

57
to give effect to the foregoing rules and provisions of this Chapter."
Nothing is contained in the foregoing which would empower promulgation of a prohibition, or even an authorization, on a subject not within the scope of the law on State purchases and the purchasing department, as codified in Georgia Code Ann. Chapter 40-19. In fact, any such delegation to an official would, in all probability, be considered by the courts as an unlawful delegation of authority and struck down as such. Therefore it is my opinion that the Supervisor of Purchases has no authority under 40-1921 either to authorize or prohibit such purchases per se. Insofar as a rule sought to carry forth the intent of 40-1903, favoring of Georgia products, it would be perfectly within his power and authority.
March 5, 1963
OPINION TO THE DEPARTMENT OF COMMERCE
This will reply to your letter in which you ask to be advised as to what action, if any, will be required insofar as existing contracts with the House and Home Finance Agency of the Federal Government are concerned when the present Department of Commerce (with its principal officer being the Director) is re-organized under the Act approved March 6, 1962 (Georgia Laws 1962, p. 694) and becomes the Department of Industry and Trade under the direction and supervision of a Board of Commissioners.
In my opinion, no action will be necessary insofar as existing contracts entered into by the Department of Commerce are concerned. Section 1 of the 1962 Act provides:
"Section 1. There is hereby created as a part of the Executive Branch of the State Government, the Department of Industry and Trade, which is created in lieu of and as successor to the Department of Commerce";
and 16 of said 1962 Act provides:
"Section 16. All references in any laws which refer to the Director of the Department of Commerce shall be held to refer to the Board of Commissioners of the Department of Industry and Trade. The Board created by Section 2 of this Act is hereby declared to be successor to the previous Board and Director, and shall succeed to the control, powers, duties, authority, functions and jurisdiction thereof."
I am of the opinion that the language quoted from the 1962 Act is sufficiently broad to bind the newly created Department of Indusiry and Trade and its Board of Commissioners on any of the outstanding contracts legally entered into by its predecessors, the Georgia Department of Commerce.

58
March 5, 1963
OPINION TO THE DEPARTMENT OF VETERANS SERVICE
I am pleased to acknowledge your letter in which you requested my official opinion concerning the tax-exempt status of automobiles owned by paraplegics receiving the $1600 grant from the Veterans Administration for the purpose of a specially adapted automobile.
Title 38, Chapter 39, 1901, 1902, 1903, 1904, and 1905 of the United States Code create the $1600 grant to paraplegics. These sec~ tions bestow only the above-named benefit upon the veteran and do not create any tax exemption.
The Constitution of Georgia as unofficially codified in 2-5404, of the Georgia Code Annotated, provides in part:
"Exemptions from Taxation. The General Assembly may by law exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; . . . All laws exempting property from taxation, other than the property herein enumerated, shall be void."
In Georgia Code Ann. 92-201, the General Assembly enacted thEl! tax exemptions enumerated in and provided for by the Constitution_ using almost identical language with that used in the constitutionaL provision.
Consequently, since Title 38, Chapter 39, of the United States; Code, as well as Georgia Code Ann. 2-5404 and 92-201 do not create any tax exempt status favoring the paraplegics, I am of the opinion that the automobiles in question are subject to Georgia state, ad valorem taxes.
March 7, 1963;
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opmwn as to, whether the Nursing Home Authority of Chatham County, Inc.,, (hereinafter referred to as the "Nursing Home") is entitled to a. credit against its sales or use tax liability to the State of Georgia under the provisions of Section 13A of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as. amended.
According to my information, the Nursing Home was chartered. by the Superior Court of Chatham County as a non-profit corporation, on June 8, 1959, for the purpose of operating and administering "one or more hospitals and/or nursing homes for the care and treatment of indigent persons." Its governing body consists of a Board_ of nine Trustees selected by the Commissioners of Chatham County and Ex-Officio Judges thereof. Although authorized to operate a

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hospital, it has, since its inception, only been engaged in operating a nursing home. Thus, until recently when application was made for a Medical-Nursing Care Home Permit, this operation was classified as a Skilled Nursing Care Home by the State Department of Health, under rules and regulations adopted and promulgated by the State Board of Health governing nursing homes and related institutions. It receives eighty per cent of its financial support from public funds.
Section 13A of the Act states:
"A use tax credit shall be allowed to any hospital organization operating in this State which is supported by public funds, administered by a board or committee made up in whole or in part by public officials in their capacities as public officials, or by persons appointed by public officials in their capacities as public officials, and which represents an effort on the part of the State, or any county, or municipality, or a combination thereof, to perform a public hospitalization function to the following extent: At the end of such hospital's fiscal year, a credit shall be computed which shall be that portion of the sales and use tax paid during such fiscal year by such hospital organization as the contributions made from public funds by any municipality, or county, or the State, or the Federal Government, or any combination thereof, to the operating expenses and equipment purchases of such hospital organization bears to the total operating expenses and equipment purchases of such hospital organization for such fiscal year. Such credit shall be allowed such hospital organization against its sales and use tax liability for succeeding taxable periods until exhausted but such credit shall not bear interest and shall not be the basis for a claim or refund."
From this it can be seen that to qualify for the credit authorized by this section, a taxpayer must meet four conditions:
(1) It must be a hospital organization;
(2) It must be supported in part by public funds;
(3) It must be administered by a board or committee made up in whole or in part by public officials in their capacities as public officials or persons appointed by public officials in their capacities as public officials;
(4) It must represent an effort on the part of the State, or any county, or municipality, or a combination thereof, to perform a public hospitalization function.
If it fails to meet any one of these, although it meets the other three, the credit is not available. Since the Nursing Home, in my opinion, fails to meet the first (i.e., it is not a hospital organization) there is no need to consider whether or not it meets the others, although it appears, without much doubt, that it has met (2) and (3) and if it were a hospital, it would represent an effort on the part of Chatham County to perform a public hospitalization function.

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In reaching these conclusions, I am aware that names and labels are not generally controlling in determining the true nature of a thing, Sessions v. Thomas Dee Memorial Hosp. Assn., 89 Utah 222, 51 P. 2d 229 (1935), and that despite its name, the Nursing Home could, if it should choose, lawfully operate a hospital. What it is operating, however, and not what it can operate, is the important thing, and, in this respect, the information I have indicates that it has chosen to restrict its activities to those of a nursing home.
My conclusion regarding the nature of its operation is based upon the classification made of it by the State Health Department, acting pursuant to the afore-mentioned rules and regulations. Until recently, when it was changed to that of a Medical.:Nursing Care Home, its classification was that of a Skilled Nursing Care Home. Both these Home types, however, are institutions governed by said regulations, which define an institution coming within their purview as "any home, facility, or place, however named, whether operated for profit or not, which is advertised, offered, maintained, or operated by the ownership or management as providing the facilities, nursing care, and related medical services or personal care for twenty-four hours or more for two or more patients who are not closely related to the ownership or manager and who are not in need of hospital care." (emphasis supplied) Georgia State Board of Health, Rules and Regulations Governing Nursing Homes and Related Institutions, 2.1-1.
Any home, facility or place falling within this definition is assigned to one of the following classes, dependent in part upon the degree of medical care and supervision it provides for its inmates: (1) Personal Care Homes; (2) Nursing Care Homes; (3) Skilled Nursing Care Homes; and (4) Medical-Nursing Care Homes. Ibid. 3.1. Homes providing no medical care or supervision are placed in class (1) while those providing some are placed in class (2), (3) or (4), depending on the amount provided. But in no case do these homes have as their primary objective the furnishing of medical care or supervision. Their primary purpose is to provide personal or nursing care.
In considering the nature of hospitals, which are also regulated by the Board of Health (Georgia Laws 1946, p. 30, as amended), reference is made to the following definition adopted by the Board:
"The term 'hospital' shall mean any physical facility designed to provide simultaneously for two or more patients, diagnostic, treatment or health services requiring the intensive or continuous supervision of a licentiate of a healing art and so equipped, staffed and used as to provide residential, personal and professional care usually for twenty-four hours or longer." (emphasis supplied) Georgia State Board of Health, Rules and Regulations for hospitals in Georgia, Part I, "Definitions."
While few courts have attempted to define the term "hospital," those that have are in substantial agreement with the definition contained in McNichols v. Denver ex rei. Newton, 120 Colo. 380, 209 P. 2d 910 (1949), wherein it was held that the word "hospital" in its ordinary usage means an institution for the medical or surgical care of the sick, the injured or the infirm. In Employers Cas. Co. v. Givens,

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190 S.W. 2d 155 (Tex. Civ. App., 1945), and Frax Realty Co. v. Kleinert, 123 Misc. 455, 205 N.Y.S. 728 (1924), a nursing home and a home for the aged, respectively, were declared not to be hospitals.
Running through these authorities is the idea that a hospital, in contradistinction to a nursing home, is primarily intended to serve as a place where medical and surgical care and treatment are provided. A nursing home, on the other hand, has as its primary aim the furnishing of nursing or personal services, with any medical care which it might provide being incidental or secondary thereto.
In summary, I am of the opinion that the Nursing Home is not operating a hospital organization and, therefore, does not qualify for the tax credit provided for in 13A of the Sales and Use Tax Act, as amended.
March 11, 1963
HATCH ACT
I am in receipt of your letter of recent date inquiring into the status under the Hatch Act of Air National Guard technicians. In your letter you point out that Air National Guard technicians are personnel authorized by law to be employed by the States and compensated from Federal funds appropriated by Congress.
It is my opinion that they are prohibited from taking any active part in political management or in political campaigns. This opinion is based on the following quoted sections of the United States Code Annotated:
5 U.S.C.A. 118i:
"(a) It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take an active part in political management or in political campaigns. All such persons shall retain the right to vote as they choose and to express their opinions on all political subjects and candidates. . . ." 5 U.S.C.A. 118k:
"(a) No officer or employee of any State or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency shall (1) use his official authority or influence for the purpose of interfering with an election or a nomination for office, or affecting the result thereof, or (2) directly or indirectly coerce, attempt to coerce, command, or advise any other such officer or employee to pay, lend, or contribute any part of his salary or compensa-

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tion or anything else of value to any party, committee, organization, agency, or person for political purposes. No such officer or employee shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates... .''
It is believed that the foregoing answers your question, however, if we may be of further service, please advise.
March 12, 1963
SALES TAX
This is in reply to your letter concerning the taxability of meals furnished without charge to employees of the Valdosta Country Club under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended. You state that it is your understanding that I have rendered an opinion that such meals are not taxable.
Although I cannot find where I have ever rendered such an opinion in the past, I think the Act clearly does not attempt to tax a gift of tangible personal property. However, the problem is one of determining whether there has been a gift rather than a sale as defined by the Act. If there is consideration, whether in the form of money or not, for the transfer of title or possession of tangible personal property, including meals, the transaction is taxable.
According to section 3(c) 3(a) of the Act, the term "sales price" is defined to be "the total amount for which tangible personal property ... [is] sold, including any services that are a part of the sale, valued in money, whether paid in money or otherwise...." Based upon this and the fact that the services of each employee appear to be consideration for his meals, I am of the opinion that they are taxable to the extent of their fair market value.
March 19, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to answer your letter wherein you request an official opinion regarding the following question:
"Does the DeKalb County Board of Education have the legal right to use local or State school tax funds to pay for an independent audit of the DeKalb County school account?"
The above stated question was answered in the negative by this office in an unofficial opinion rendered October 26, 1962. See Ops. Att'y Gen. 155 (1962). The matter was fully explored at that time and

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discussed at length in that opinion. I adhere to the conclusion stated therein to the effect that a local board of education may not lawfully expend educational funds for the purpose of obtaining an independent audit of the school account. I am of the opinion that the same is applicable to both local and State educational funds had by the county board of education. Enclosed herein you will find a copy of the 1962 opinion. I think that you will find the same helpful and exhaustive of the question stated above.
March 19, 1963
CITY TAX
You inquire concerning the taxing of an egg producer by the City of Thomaston. You state that a commercial egg producer has leased a building in the City of Thomaston and is engaged in the selling of eggs on the premises. You further state that the City has asked him to pay a tax in the amount of $25.00. You do not indicate the nature of this tax.
Georgia Code Ann. 5-603 provides :
"5-603. No municipal corporation shall levy or assess a tax on cotton or the sales thereof, nor levy or assess a tax on any agricultural products raised in this State, or the sales thereof (other than cotton), until after the expiration of three months from the time of their introduction into said corporations."
This section has been the subject of litigation before the Supreme Court of Georgia. An examination of these decisions would at first reveal an apparent conflict in the results and a difference of opinion by the Supreme Court in the several cases.
The first of these is Georgia Milk Producers Confederation v. City of Atlanta, 185 Ga. 192 (1937), which later appeared in the Supreme Court in City of Atlanta v. Georgia Milk Producers Confederation, 187 Ga. 117 (1939). Both of these cases resulted in decisions favorable to the Milk Producers and in effect held that the City of Atlanta could not levy an ad valorem tax under the provisions of the above quoted Code section.
In 187 Ga. 117, at page 119, the Court stated: "A classification exempting the sale of agricultural products from taxation is reasonable."
The case of Rossman v. City of Moultrie, 189 Ga. 681 (1940), involved the authority of the City of Moultrie to require by ordinance a license for "Dairy-selling and delivering milk or cream in the City .. $15." The Supreme Court, in upholding the authority of the City, stated:
"We are dealing here not with power of the General Assembly to exempt dairy products from municipal taxation, but the question is, have the law-making authorities done so? Nothing to the contrary was decided in Georgia Milk Producers Con-

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federation v. Atlanta, 185 Ga. 192 (194 S. E. 181). There the sole question was whether a levy by a municipality of an ad valorem tax on accounts receivable for moneys due to a nonprofit cooperative association organized for marketing dairy products of its members is in effect a tax on the gross sales of the products, and therefore violative of Code 5-603. That decision had as its foundation the fact that the term "agricultural products' is expressly defined in the act known as the 'cooperative marketing act' as including 'dairy ... products'."
Thereafter follows an interesting discussion in the opinion as to what is and is not an "agricultural product." Subsequent to these decisions, the General Assembly, by Georgia Laws 1957, page 607 (Georgia Code Ann. 92-4108), placed restrictions upon the taxation of agricultural products and livestock. It reads:
"92-4108. No municipal corporation in this State shall levy any license, tax or fee, or require the payment of any fee or tax, upon the sale or introduction into the municipal corporation of any agricultural products raised in this State, including swine, cattle, sheep, goats and poultry, and the products thereof, where the sale and introduction are made by the producer thereof, and the sale of said products is made within 90 days of the introduction of said products into the municipality. The exemptions provided herein shall be in addition to all other exemptions from taxation and licensing now provided by law for such products."
I have been unable to find any appellate court decision, construing or interpreting the provisions of this Act. You will note that the General Assembly has included specifically poultry and the products thereof within the definition of "agricultural products."
From the above, and applying the reasoning of the Supreme Court in the Moultrie case, I am of the opinion that the General Assembly has exercised its authority and provided restrictions upon the taxation of agricultural products and livestock as enumerated in the above quoted provisions of the 1957 Act. I am further of the opinion that so long as the egg producer comes within the conditions of the 1957 Act, the City of Thomaston would be without authority to impose any tax upon this producer.
March 20, 1963
OPINION TO THE BOARD OF EXAMINERS IN OPTOMETRY
I am in receipt of your request for my opinion concerning the listing of Optometrists in the classified section of the Telephone Directory of the Southern Bell Telephone and Telegraph Company in Atlanta.
You specifically request my opinion regarding the listing therein under the heading of "Optometrists - OD" of persons or businesses

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other than those persons holding a license to practice optometry under the laws of this State. You further request my opinion concerning listings under the headings "Optometrists - Contact Lenses," and "Optometrists - Visual Training."
I am sure that you are aware of the Rules and Regulations and the laws of this State relative to the practice of optometry. Without encumbering this opinion with recitations of such laws, I incorporate all of the same herein by reference.
There is no question as to the authority to publish such advertisements under the Constitution of the United States and of this State. The freedom of the press is, however, subject to valid restrictions when such restrictions are in the public interest. In connection therewith, see 16 C.J.S. Constitutional Law 213.
As to the restrictions placed upon advertising by an optometrist, see 70 C.J.S. Physicians and Surgeons 31-34 (1951). See also 27 South Eastern Digest- "Physicians and Surgeons," 10.
Georgia Laws 1961, page 197 (Georgia Code Ann. 106-503) provides:
"Section 1A. No person, firm, corporation or association or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services professional or otherwise, or to do anything of any nature whatsoever to induce the public to enter into any obligation relating thereto, shall make or disseminate or cause to be made or disseminated before the public in this state, in any newspaper or other publication or advertising device or by public outcry or proclamation or any other manner or means whatever any statement concerning such real or personal property or services, professional or otherwise, or concerning any circumstances or matter of fact connected with the proposed performance or disposition thereof, which is untrue or fraudulent and which is known, or which by the exercise of reasonable care should be known, to be untrue or fraudulent. Nothing in this section shall apply to any visual or sound broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of printed advertising, who broadcasts, telecasts, publishes or prints such advertisement in good faith without knowledge of its false or fraudulent character.
"Whoever violates this section, shall be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than twenty days, or both."
As to the listings under "Optometrists-OD," it would appear that only those persons holding a valid license to practice optometry could be listed under such a heading. To hold otherwise runs contrary to the commonly accepted premise of truthfulness and correctness. To hold that any other person could be properly listed under such a heading would be to ignore basic fundamental issues, and there would be no limitation on what could be placed under such a heading.

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As to the listings under the other headings, I am of the opinion that only those persons holding a valid license to practice optometry who are actually engaged in the practice of the specialty indicated following the designation "Optometrists" could be so listed.
March 20, 1963
OPINION TO THE INSURANCE DEPARTMENT
You have asked whether Georgia Code Ann. 56-1543, applies to the application of the National Investors Life Insurance Company of Georgia for a certificate of authority to transact insurance in Georgia.
Section 56-1543 requires corporations subject thereto to secure the approval of the Insurance Commissioner prior to offering its stock for sale to the public.
This section of the insurance law was not in force at the time of First Equity's stock offering and there was no other provision of law requiring approval of such a stock offering in effect at the time. Because of these facts, I am of the opinion that 56-1543 is not applicable to National Investors and should not be considered in determining whether or not to issue a certificate of authority to transact business.
You ask further, and generally, if this section is applicable where a holding company does not offer its stock for sale in Georgia.
Section 56-1543 is twofold in operation. First, this section provides for a filing with the Georgia Insurance Commissioner. The language is clear as to who must file, and is not limited to Georgia corporations. It is applicable to "any corporation" which is organized for the purpose of organizing or holding the stock of a Georgia insurance company.
The filing is in the nature of a "registration statement." From the information filed and any further investigation made by the Commissioner, a determination is to be made. The registration statement is to contain the total amount of securities to be offered and further, the amount of securities to be sold in Georgia (subparagraphs (2) and (3)). I am of the opinion that 56-1543 is applicable regardless of whether any stock is to be offered in Georgia. It is from the registration statement that the Commissioner determines whether any stock is to be offered in Georgia.
Furthermore, I am of the opinion that the Legislature intended to protect Georgia purchasers of such stock for the Code section in question goes on to provide that, "if .. the sale of such securities would work or tend to work a fraud on purchasers thereof, he [the Insurance Commissioner] shall not approve such issue and sale of such securities in this State." This last quoted part of the Code section in question provides the primary duty of the Commissioner thereunder. This, so to speak, is the second phase of the statute. If no stock is to be sold in Georgia the Commissioner need not exercise the authority vested in him to refuse approval of the sale of such stock in Georgia.

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March 25, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your letter requesting my opmwn as to whether a manufacturer-seller of truck bodies and specialized truck equipment has any sales tax liability to the State of Georgia under the following facts :
In the regular course of its business, an in-state manufacturerseller of truck bodies and specialized truck equipment manufactures and installs, in accordance with detailed specifications, such bodies and equipment on truck chassis owned by various out-state customers. In substantially all these cases, the chassis upon which installation is made is a new chassis which has been or is being acquired by the purchaser from a chassis manufacturer or a chassis dealer. In such cases, the chassis is normally delivered to the manufacturer-seller by the chassis manufacturer or dealer.
As soon as installation of the body and equipment is completed, the truck is transported under its own power to the place of business of the purchaser in another state by a driver who is either (1) an employee of the manufacturer-seller, (2) an employee of the purchaser, (3) an employee of the dealer who is selling the particular chassis involved, or (4) an employee of an independent contractor who contracts with the manufacturer-seller for transportation of the truck. Regardless of the method of transportation, payment of the purchase price does not become due until 30 days after inspection and acceptance by the purchaser at its place of business.
Under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended, a sale, as defined, made at retail in this State is subject to the sales tax unless specifically exempted. According to Section 3 (b), which defines the term, a "sale" means "any transfer of title or possession, or both, ... in any manner or by any means whatsoever of tangible personal property for consumers who furnish, either directly or indirectly, the materials used in fabrication work...." (emphasis supplied)
From this it can be seen that the common law concept of a sale is not involved. Transfer of either title or possession in this State is sufficient to constitute a sale within the meaning of the act. Either is a taxable event. So, if possession is transferred in this State, although it immediately precedes transportation to another state, a sales tax liability accrues to Georgia. International Harvester Co. v. Department of Treasury, 322 U. S. 340, 64 S. Ct. 1019, 88 L. Ed. 1313 (1944).
While International Harvester concerned a tax on gross receipts, the Court made it clear that there is no constitutional difference whether the tax utilized is one laid on gross receipts or whether it is a sales tax imposed on each isolated sales transaction.
Regardless of where or when the parties intend title to pass, a taxable event takes place when possession is transferred in this State. Of

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course, if both title and possession are transferred outside the state, no taxable event occurs in Georgia to which the tax would apply.
Assuming then that the parties intend to defer passage of title in each of the four situations referred to until final inspection and acceptance at the purchaser's place of business, taxability depends on the place where possession is transferred. In the first situation, no tax is due since both title and possession are transferred out of state. In the second, where the purchaser's employee takes possession in Georgia, the tax is due. Without more information, I can come to no conclusions with respect to the third situation. Insofar as the fourth is concerned, I am of the opinion, in the absence of more information, that no tax is due inasmuch as it appears that the independent contractor is acting for the manufacturer-seller in transporting the property out-state for the purpose of transferring possession.
So as to remove any apparent confusion that may exist as a result of previous opinions I have rendered relating to the applicability of the Sales and Use Tax Act to sales in interstate commerce, I would like to add that the use of the term "delivery" therein was generally used in the sense of "a transfer of possession."
March 26, 1963
AD VALOREM TAX
This is in reply to your question concerning ad valorem taxation of real property where the owner of the fee has granted private easements to utility companies.
I have examined the provisions of our revenue laws and I am unable to find any exemption of property from taxation based upon the fact that an easement has been granted to a utility company. Georgia Code Ann. 92-101 provides that all real property is liable for taxation and 92-6911 provides that it is the duty of the Board of Tax Assessors to see that all taxable property within the county is assessed and returned at its just and fair evaluation. Section 92-5701 provides that all property shall be returned for taxation at its fair market value.
The real property must be returned for taxation at its fair market value. Should it be shown that the utility easement in question reduces the value of the property, then the property should be returned at its reduced value, but the property is not exempt from taxation merely because of the existence of an easement.
Exemptions from ad valorem taxation are provided in our State Constitution and the Constitution specifically provides that all laws exempting property from taxation other than the property enumerated in that constitutional provision shall be void. (Georgia Code Ann. 2-5404). It is my opinion that the property is subject to ad valorem taxation.

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March 28, 1963
AD VALOREM TAX
This is in reply to your letter in which you asked whether the County Tax Assessors may raise property valuations for school purposes higher than the valuation established for other purposes. This procedure would, of course, result in one digest for school purposes and another digest for other County purposes.
The State Constitution provides, in Art. VIII, Sec. XII, Par. I, as follows:
"Taxation by counties for education.-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 co-extensive 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 fifteen mill limitation provided in this paragraph may be removed or increased in a county under the procedure set out hereinafter. The county board of education, in order to instigate the procedure, must pass a resolution recommending that the limitation be removed and upon presentation of such resolution to the ordinary it shall be his duty, within ten days of the receipt of the resolution, to issue the call of an election to determine whether such limitation shall be removed. He shall set the election to be held on a date not less than twenty nor more than thirty days from the date of the issuance of the call and shall have the date and purpose of the election published in the official organ of the county once a week for two weeks preceding the date of the election. If a majority of the electors qualified to vote for members of the General Assembly voting in such election vote in favor of such proposal, there shall be "no limitation in such county and the county board of education may recommend any number of mills not less than five for the purposes set out above. In lieu of recommending that the limitation be removed entirely, the board may recommend that it be increased and shall specify the amount in the resolution. The election provisions for increase shall be the same as for removal and if the proposal is favorably voted upon the board may recommend up to the specified amount. It shall be the duty of the ordinary to hold the election, to canvass the returns and declare the results. It shall also be his duty to certify the results to the Secretary of State. The expense of the election shall be borne by the county." (Georgia Code Ann. 2-7501).
The establishment of a separate digest for school purposes would, in my opinion, violate the spirit and intention of the State Constitution. The Constitution provides a method of raising taxes for educa-

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tiona! purposes above the twenty mill limit only upon a vote of the people.
The Supreme Court of this State held, in the case of Green v. Calhoun, 204 Ga. 550 (1948), that an increase of valuations of property on the returns of taxpayers to provide additional revenue for educational purposes was an arbitrary attempt to provide such revenue and was unlawful. See also Hutchins v. Howard, 211 Ga. 830 (1955).
Tax Assessors may not lawfully create a separate tax digest or arbitrarily increase the County tax digest solely for the purpose of providing additional revenue for educational purposes.
March 29, 1963
OPINION TO THE BOARD OF CORRECTIONS
This office has received your inquiry concerning the legality of the use of Macon County prison labor on certain lands which were formerly deeded to the J. W. English Foundation, Inc., of Homestead, Florida, by the County.
You attached to your request for an opinion a letter from the Honorable William T. Roberts, County Attorney for Macon County, in which it is stated that the deed granted by the County to the English Foundation contained a reversionary clause to the effect that "the title would revert to Macon County in the event certain buildings and improvements were not made on the property within a three year period". Mr. Roberts further stated that no improvements were made.
The question, then, as to the legality of the use of prison labor cannot be answered without first determining the proper placement of the fee. Not having the actual language of the deed before me, I can only assume that the condition referred to by Mr. Roberts as a reversionary clause is a limitation on the estate.
" 'A limitation in a deed determines the estate when the period of limitation arrives, without entry or claim. But a condition does not defeat the estate, although it be broken, until entry of the grantor or his heirs.' Where a deed contains a limitation, the estate determines upon the happening of the event upon which it is limited, and, if the limitation is not to another, goes over to the grantor or his heirs by reverter without necessity of reentry." Lawson v. Georgia So. & Fla. Ry. Co., 142 Ga. 14, 17 (1914) ; See also Moore v. Well, 212 Ga. 446 (1956).
A limitation is distinguished from an ordinary condition subsequent inasmuch as it marks the limitation or boundary beyond which the estate conveyed could not continue to exist. Mayor & Council of Macon v. East Tenn., Va. & Ga. Ry. Co., 82 Ga. 501 (1888).
Where a deed contains a limitation, the estate determines upon the happening of the event upon which it is limited and if the limitation is not to another, goes over to the grantor or his heirs by a reverter

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without necessity of re-entry. Norris v. Milner, 20 Ga. 563 (1855); Lawson v. Georgia So. & Fla. Ry. Co., supm.
Therefore, treated as a limitation, the estate terminated upon the expiration of the three year period without the required structural improvements having been made. At that time the fee automatically reverted to the grantor, in this case Macon County, and, therefore, is public property upon which improvements and other work can be performed by county prison personnel in accordance with the provisions of Georgia Laws 1957, p. 477, 2 (e).
April 1, 1963
OPINION TO THE DEPARTMENT OF COMMERCE
This will reply to your letter in which you ask to be advised as to the legality of the Lake Lanier Islands Development Authority's expending State Funds on lands leased from the Federal Government. You also ask about the possibility of requesting Congress to give these lands to the State of Georgia for development.
The Lake Lanier Islands Development Authority Act, approved March 7, 1962 (Georgia Laws 1962, p. 736) authorizes the Authority:
"Section 4 (d) 'to make contracts, and to execute all instruments necessary or convenient, including contracts for construction or projects or contracts with respect to the leasing or use of projects which it caused to be subdivided, erected or acquired;'
"Section 4 (e) 'to plan, survey, subdivide, improve, administer, construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate and manage projects hereinafter defined, to be located on property owned or leased by the Authority, the cost of any such projects to be paid from its income the proceeds of revenue anticipation certificates of the Authority, or from such proceeds and any grant from the United States of America or any agency or instrumentality thereof, or the State of Georgia.'
"Section 4 (n) 'to hold, use, administer and expend such sum or sums as may hereinafter be received as income, as gift, or appropriated by authority of the General Assembly for any of the purposes of this Authority.' "
Section 5 of the Act provides that:
"All income, revenues, gifts, grants, appropriations, bond or loan proceeds, rights and privileges of value of every nature accruing to the Authority shall be used for the sole purpose of beautifying, improving, developing, maintaining, administering, managing and promoting the Islands in Lake Lanier at the lowest rates reasonable and possible for the benefit of the people of the State of Georgia for recreational purposes."

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Section 6 of the Act declares that the development of the Islands in Lake Lanier for recreational purposes is in the interest of the public welfare of the State of Georgia and its citizens.
From the provisions of the Act quoted above it is clear that the Legislature intended that the Authority expend State funds made available to it in the development of the Islands for the recreational use of the citizens of Georgia.
I am therefore of the opinion that the Lake Lanier Islands Development Authority is legally authorized to expend State funds for the development of recreational facilities on the Islands in Lake Lanier leased from the Federal Government. I am of the further opinion that such expenditures of funds made available to the Authority is not violative of any of the inhibitions contained in the Constitution of Georgia relating to the expenditure of public funds. (Aven v. Steiner Cancer Hospital, Inc., 189 Ga. 126 (1939)).
In regard to the possibility of requesting Congress to give these lands to the State of Georgia, it is suggested that the Authority members contact the United States Congressman in whose District the Islands are located and also Senators Russell and Talmadge and request their assistance.
April 1, 1963
OPINION TO THE BOARD OF CORRECTIONS
This office has received your letter in which you request an official opinion concerning the legal aspects of the placement of prisoners serving time in State penal institutions for the conduct of work projects at county jails, courthouses, State patrol barracks, and State armories.
It is the duty of the State Board of Corrections to adopt, establish, and promulgate rules and regulations governing the transaction of business of the penal system. Georgia Code Ann. 77-307. In 1957 the General Assembly specifically authorized the Board of Corrections as well as a penal institution or county public works camp operating under jurisdiction of the Board to enter into contracts with public bodies involving the use of prison labor on the public roads and other public works. (Georgia Laws 1957, p. 480.) There can be no doubt that prison workers for the construction, repair, or maintenance of jails, courthouses, barracks, and armories are authorized under this 1957 Act if deemed advisable by the Board or if done by proper contract with the enumerated public bodies.
You state in your letter that in some instances some of the prisoners within the Board's control perform their prison labor at county jails at which they remain for periods in excess of twenty-four hours, and you question the propriety of this practice in view of the prohibitions contained in 77-309 that "Neither the Director, nor the Board, shall have authority to assign male or female prisoners to serve

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in any manner in a county jail." It is axiomatic that what the Board is not allowed to do in this respect is also prohibited to the individual institutions or public work camps.
However, in view of the broad language found in the 1957 amendment that prison labor could be required in public buildings in any such manner as deemed advisable by the Board, it is obvious that the Legislature intended the Board to prescribe the conditions of work required of the prisoners. And even though as mentioned before, some of the prisoners are physically restrained for overnight periods in county jails, their primary assignment is nonetheless to the prison or public work camp as determined by the Director. In turn the prison or camp has sole administrative responsibility and control of the prisoner even though he may be temporarily attached to the county jail to perform the required repair or maintenance services. Such a temporary attachment is not an assignment which contravenes the language of 77-309.
April 1, 1963
OPINION TO THE BOARD OF CORRECTIONS
I have received your letter concerning use of prison labor on a road construction project being conducted by Fayette County, Georgia.
Subparagraph (e) of Section 4 of Georgia Laws 1957, page 477, reads as follows :
"(e). The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of state or local government now or hereafter created by law, which are hereby authorized to so contract with the board, for the construction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor."
From the language of this Act the local county public works camps, upon approval of the Board, would be authorized to contract with the County of Fayette for the use of prison labor for the construction of culverts on a public road in Fayette County. The fact that the County has entered into a lease agreement for certain equipment and skilled labor to operate same from a private concern does not make the use of prison labor on the project illegal. However, despite the language contained in the letter which you enclosed, I can find no reference to the furnishing of prison labor mentioned in the lease agreement with Fayette County.

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April 1, 1963
OPINION TO THE GOVERNOR
I have your letter relative to H.B. No. 622, which recently passed the General Assembly. You stated you have received many inquiries as to whether this bill would apply to gun collectors, and request my opinion whether such persons who collect guns as a hobby and sell and exchange the same frequently between themselves would be required to obtain licenses under the terms of this bill.
As originally introduced, the bill would have applied to all persons. However, the bill was amended by adding to the end of 1 the following language: "Nothing in this Act shall apply to or prohibit the casual sales of the articles [any caliber pistol, revolver or short barreled firearm of less than fifteen (15) inches in length] referred to between individuals." This had the effect of changing the complexion of the proposed legislation. The provisions of the bill, after being amended, seemed aimed at controlling the sale and disposition of firearms by persons regularly so engaged as their business, or as a normal part of the operation of their business. As such, in view of the amendment, I am of the opinion a casual sale between two private persons who do not regularly follow and engage in such a pursuit as a means of livelihood would be exempt from the application of the bill.
I shall be happy to discuss any other aspects of this bill with you, should you so desire.
April 2, 1963
OPINION TO THE GOVERNOR
This is in reply to your letter in which you enclosed a copy of House Bill 352, enacted during the 1963 regular session of the General Assembly, which classifies certain kinds of pin-ball machines as being gambling devices and prohibits their maintenance or operation, as well as classifying another class of such machines and declaring them not to be gambling devices.
I have reviewed this Bill and found no problems as to its constitutionality. In order for an Act of the General Assembly to be declared unconstitutional, the repugnancy between the Act and the particular provision of the Constitution in question must be clear and unmistakable. Therefore, in even doubtful cases, the courts will uphold the constitutionality of a statute on the ground that the General Assembly intended to classify on a reasonable basis and not arbitrarily. Wright v. Hirsch, 155 Ga. 229 (1922) ; Cook v. Cobb, 72 Ga. App. 150 (1945).

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April 2, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your request for my official opinion of the effect of House Bill Number 320, enacted by the 1963 General Assembly amending the Motor Fuel Tax Law.
You ask whether the Act will allow payment of any refunds of tax paid on gasoline used in propelling watercraft?
It is my opinion that no refunds should be paid on gasoline used in propelling watercraft of any type. The Act (House Bill Number 320) in its title says: "to repeal the refund authorized...." Section 1 of the Act says: " ... by striking from Section 92-1403, in its entirety, the provision relative to the refund...." Section 2 of the Act states: "It is the intent and purpose of Section 1 of this Act to repeal the authorization of law to refund the tax paid on gasoline used in the propulsion of watercraft...." Following this in Section 2 is the proviso that nothing shall apply to certain purchases in certain situations (e.g., watercraft in excess of 35 gallons and purchased upon the intercoastal waterway).
This provision is of no effect. Under the Act there are no refunds of any type to any purchasers. Penick v. High Shoals Mfg. Co., 113 Ga. 592 (1901). Where a proviso is repugnant to the body of the Act, the body of the Act will prevail and the proviso will fail. Grant v. Houston, 170 Ga. 414,417 (1930).
After the effective date of this bill (June 30, 1963), the Treasurer will be prohibited from paying any refund of motor fuel taxes paid on gasoline used in watercraft regardless of when the purchases of motor fuel were made or when the claims were filed. Roberts v. Barwick, 187 Ga. 691 (1938); 84 C.J.S. Taxation 632; People ex rei. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E. 2d 318, 124 A.L.R. 1472 (1939). The repeal of the statute authorizing a refund takes away the right of a citizen to claim a refund and also takes away the authorization for public officers to pay the refund. Such a repeal also acts retroactively and no refunds are allowable even though the purchases upon which they are based and the claims therefor accrued prior to the effective date of the repeal.
It is unfortunate that both the body of the Act and the proviso could not be reconciled. However, since they cannot be, the body of the Act must prevail, and in the case of House Bill Number 320 the body of the Act repeals the entire refund provision without any exceptions.
April 3, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to acknowledge your letter in which you requested my opinion as to whether the tax digests in the several counties

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should be kept strictly in alphabetical order or should be divided alphabetically into militia districts.
Two Acts of the General Assembly of Georgia provide ample authority for the assumption that the tax digest must be kept in straight alphabetical order in counties having a population of not less than 70,000 nor more than 100,000 inhabitants. The same situation applies to counties having a population of more than 200,000 inhabitants. See Georgia Laws 1935, page 476, and Georgia Laws 1937-38, Extra Session, page 185.
The above-cited Acts supplement a provision found in Georgia Laws 1894, page 31, and codified unofficially as 92-6307 of the Georgia Code Annotated, which provides:
"92-6307. (1086) Entry on digest of names of colored persons.-The tax receivers shall place the name of the colored taxpayers, in each militia district of the county, upon the tax digest in alphabetical order. Names of colored and white taxpayers shall be made out separately on the tax digest."
It is obvious that the Legislature in 1894 intended that the names of all taxpayers, both colored and white, were to be listed alphabetically according to militia districts. Consequently, the legal implication arises from Georgia Laws 1935, page 476, as well as from Georgia Laws 1937-38, Extra Session, page 185, that in all counties having a population of less than 70,000, in addition to all counties having a population of more than 100,000 but less than 200,000, the tax digest must be segregated according to militia districts. It is our conclusion, therefore, that in all counties having populations of more than 70,000 and less than 100,000 in addition to all counties having a population of more than 200,000, the tax digest must be kept in a straight alphabetical order and not separated into individual militia districts.
April 4, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to acknowledge your letter in which you requested my opinion as to whether Houston County was entitled to receive any amount from certain funds paid in lieu of taxes to the City of Warner Robins, Georgia, by the Warner Robins Housing Authority.
Section 99-1132 of the Georgia Code Annotated provides:
"99-1132. Tax exemption and payments in lieu of taxes.The property of an authority is declared to be public property used for essential public and governmental purposes and not for purposes of private or corporate benefit and income, and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof: Provided, however, that in

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lieu of such taxes or special assessments, an authority may agree to make payments to the city or the county or any such
political subdivision for improvements, services and facilities furnished by such city, county, or political subdivision for the benefit of a housing project, but in no event shall such payments exceed the estimated cost to such city, county, or
political subdivision of the improvements, services or facilities to be so furnished. (Acts 1937, pp. 210, 230.)"

The language of the Code section indicates that there is nothing

which would compel the housing authority to pay any sums in lieu

of taxes. The first thing to be determined, then, is whether the

Warner Robins Housing Authority, in fact, agreed to pay certain

funds to Houston County in lieu of taxes.



If there is such an agreement, then Houston County is entitled
to receive its pro rata share from those funds consistent with the amount of services furnished by the county for the benefit of the housing project. Of course the Code section prohibits any such pay-
ments which exceed the estimated cost to the county of the improvement or services furnished to the housing authority.

In conclusion, it is my opinion that Houston County is entitled to a share of the funds paid in lieu of taxes only if the housing
authority has agreed to such an arrangement or will now agree, and only if the county has furnished services, improvements, or facilities to the housing authority. It is necessary to resolve these factual questions before a legal opinion could be rendered with
reasonable certainty.

April 5, 1963
EDUCATION
Your letter requested an unofficial opinion regarding use of certain Walton County capital outlay educational funds by the Social Circle Board of Education. You state that the Walton County Board of Education is entitled to receive approximately $10,000.00 capital outlay educational funds per annum from the State Board of Education under the Second State Building Program, and that approximately $30,000.00 has accrued under this program to the credit of the Walton County Board of Education; that the Walton County Board of Education does not presently need to use these funds in connection with construction of school buildings to be used by the Walton County Board of Education; and that the Social Circle Board of Education desires to use these funds for the purpose of constructing a school gymnasium at Social Circle and repay the same over a twenty year period. You asked if the county board of education can legally grant or assign these capital outlay funds to the Social Circle school system.
I am informed by the Department of Education that a long term contract exists between the Social Circle Board of Education and the

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Walton County Board of Education respecting the operation of schools within the county to include the schools located in Social Circle, and that pursuant to this contract, all pupils attending school in Social Circle are assigned to and included in the average daily attendance report of the Walton County Board of Education. By reason of contractual arrangements between these two school systems, and the reporting of all pupils through the Walton County School System, the Department of Education looks upon and regards Walton County as having, for all practical purposes, a single school system. Pursuant to this and to the contractual arrangements between these two systems, all State educational funds, including capital outlay funds, funds for maintenance and operation, etc., are appropriated to the Walton County Board of Education. The Department of Education in effect does not appropriate any such funds to the Social Circle Board of Education or have any dealings with such board, insofar as departmental records are concerned. These funds, upon receipt by the Walton County Board of Education, are used, transferred, and accounts respecting same adjusted, pursuant to the terms of your contract.
You are, of course, aware of the fact that these two political subdivisions can enter into long term contracts for use of facilities, for educational purposes, etc., under the provisions of the State Constitution and State statutes. They presently have such a contract. By reason of the foregoing matters and the existing contract, the Department does not now deal directly with the Social Circle Board of Education. Any assignment of capital outlay funds by the Walton County Board of Education to the Social Circle Board of Education, assuming that such might lawfully be made, would, of course, place the Department in a position of dealing with the Social Circle Board of Education and possibly result in some confusion regarding the matter. If the county board of education is willing to permit use of the subject funds for the purpose of constructing a gymnasium at Social Circle, and it has no classroom needs as would be required by the policy of the State Board of Education in order to construct such gymnasium, then, it appears that the most logical manner of handling this matter would be for the county board of education to construct such gymnasium and retain the title to it. The two boards of education could enter into a new long term contract pursuant to which the Social Circle Board would transfer matching funds to the county board, the county board would, with such matching and capital outlay funds, construct such gymnasium and the gymnasium, when completed, would be used by the Social Circle Board for such period of time and under such terms as would effectuate repayment of the subject capital outlay funds to the Walton County Board of Education.
I feel sure that this matter can be worked out satisfactorily between the two local boards of education and I am assured that the Department of Education will cooperate with them in every respect in order to effectuate their desires regarding this matter.

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April 8, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to acknowledge your letter in which you requested my opinion as to whether a Board of Tax Assessors has a legal right to place a different value on wooded lands controlled and propagated by the pulp-wood industry from that put on wooded lands individually owned and not under a controlled program.
Section 29-6911 of the Georgia Code Annotated provides in part:
"It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes. . . ."
Therefore, in light of the above-cited authority I am of the opinion that a Board of Tax Assessors must evaluate all wooded lands the same regardless of ownership.
April 8, 1963
OPINION TO THE DEPARTMENT OF DEFENSE
I am in receipt of your letter inquiring as to applicability of the Civil Defense civil liability immunity act, Georgia Laws 1953, p. 354, to mining facilities.
It is my opinion that the act is broadly worded and would apply to mining facilities as well as to other possible shelter areas. In this connection, I refer you to the first part of the act, which reads as follows:
"Section 1. When any person, firm or corporation owning or controlling any real estate or other premises shall authorize and permit any civil defense agency, board or other authority of this State, or of any political subdivision of this State, to use such premises without charge therefor for the purpose of sheltering persons during an actual or practice attack or raid as contemplated by the Georgia Civil Defense Act of 1951, such person, firm, or corporation, at such times and for such periods during which said premises are so occupied and actually employed for purpose of civil defense, shall be clothed with the sovereign immunity of the State; . . ."
April 9, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge receipt of and answer your letter requesting an opinion regarding the following question:

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"Can a county board of education enter into a contract with an employee (professional or non-professional) for a period longer than one year?"
The Georgia Code Ann. 32-604, provides in part:
"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. Contracts for teachers, principals and other professional personnel shall be in writing, signed in duplicate by the teacher in his own behalf, and by the superintendent of schools on behalf of the board."
The General Assembly has not expressly provided for the term of employment of teachers, or for professional or non-professional school personnel generally. I do not find any reported case in Georgia on this point. The general rule of law applicable to such matter is, however, stated in 78 C.J.S. School and School Districts 185 (b), at page 1037, as follows:
"The power of the school authorities to fix the term of employment may be restricted by statutes which impliedly limit the term of employment, as, for example, to one year where the statute provides for an annual levy of school taxes, limits the life of a teacher's certificate to one year, and places the school budget and curriculum on a yearly basis, or where the city charter contemplates annual appropriations for the support of the schools."
Pursuant to provisions of the Georgia Constitution, unofficially codified as Georgia Code Ann. 2-5701(4) and 2-7501, it is provided in 32-1118 that local boards of education shall "annually" recommend to the fiscal authorities of the county the rate of the tax levy to be made for educational purposes. The education budgets of local boards of education are calculated on an annual basis. See, in regard to this matter, Georgia Code Ann. 32-614, 32-615, 32-618 - 32-621. Section 32-607, provides further that funds for teachers' salaries shall be determined on a "ten-month basis." Under 32-606, the State Board of Education "annually" establishes a schedule of minimum salaries to be paid teachers in the public school system. In addition, 32-603 places the public schools of the counties on a yearly operating basis.
Each of the Acts of the General Assembly from which the above cited code sections are codified recognizes the public school system of Georgia as operating on a yearly basis. In addition, the Georgia Constitution, in Article VIII, Section XII, Paragraph I (Georgia Code Ann. 2-6004), provides in part:
"No such county, municipality, subdivision or county board of education shall incur in any one calendar year, an aggregate

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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 evidence of such indebtedness in a total amount in excess of such anticipated revenue for such year."
Based upon the foregoing, I am of the opinion that the provisions of the Georgia Constitution and of the Acts of the General Assembly of Georgia cited above impliedly limit the term of contractual employment of employees by county boards of education to one school year.
April 11, 1963
OPINION TO THE GOVERNOR
Returned herewith is the copy of H.R. 35-77 which you sent me, which provides for the payment of $1,461.50 to Honorable Henry C. Kennedy, Clerk of both of the constitutional courts of Tattnall County. At your request I have reviewed the question of the constitutionality of this Resolution.
The language of the Resolution is substantially the same as that found in H.R. 79-240d, Georgia Laws 1957, p. 3204, which was paid (1957 Auditor's Report, p. 57), and the intent is the same as that of H.R. 33, Georgia Laws 1961, p. 239, which contained a statement of particulars and which was also paid (1961 Auditor's Report, p. 62).
Any finding as to the unconstitutionality of the Resolution would have to be premised on the constitutional prohibitions contained in Article VII, Section VI, Paragraph II of the Georgia Constitution, unofficially codified as Georgia Code Ann. 2-5402. In pertinent part it provides that:
1. The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association.
2. The General Assembly shall not grant or authorize, extra compensation to any public officer, agent or contractor after the service has been rendered or the contracts entered into.
Is the money in question which the General Assembly is directing the Board of Corrections to pay to the named clerk either a gratuity or extra compensation of a public official? I think neither. The money sought is certainly not extra compensation; it has been earned by the Clerk presumably in accordance with the statutory fee schedules and is merely uncollectable.
The remaining question is whether or not the payment would be a gratuity. The Georgia courts have defined gratuity in the case of State Highway Department v. Bass, 197 Ga. 356, 369 (1944):

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"Webster defines donation as 'that which is given as a present, a gift. A voluntary transfer without consideration,' and defines gratuity, as 'something given freely, or without recompense, a free gift, a present.' Bouvier's Law Dictionary defines donation as 'a gift ... the act by which the owner of a thing voluntarily transfers . . . the same . . . without any consideration,' and defines gratis, as 'without reward or consideration.' "
If there is consideration, there can be no gratuity. That the orderly administration of the constitutional courts is a valuable consideration flowing to the State cannot be questioned. If the judge hearing the return to a writ of habeas corpus may award costs of the proceeding against either party, that is, against the petitioning prisoner or the State if the confinement is under the Board of Corrections, no matter what the outcome of the hearing, which is authorized by Georgia Code Ann. 50-125, then surely the same result can be constitutionally achieved by action of the General Assembly.
"In construing this section of our constitution [ 2-5402], where there has been involved a consideration for the legislative grant, either past, present, or future, both this court and the Supreme Court of the United States have denominated such acts as not being within the scope of prohibited acts covered under the term 'donation' or 'gratuity.'" State Highway Department v. Bass, supm at 370.
I therefore conclude that the Resolution in question is constitutional and payment thereunder would be permissible. Further, any implication that payment to the clerk by the Board of Corrections for services rendered by the clerk to the Board is illegal under the honesty in government bill, is unwarranted.
April 12, 1963
OPINION TO THE GOVERNOR
On April 2, 1963, I rendered an official opinion at your request in which I found no constitutional defects in House Bill 352 which classified certain kinds of pin-ball machines as being gambling devices and prohibited their maintenance or operation, and defined another class of pin-ball machines declaring them not to be gambling devices.
Since then the question has been raised as to what effect, if any, the decision in the case of AAA Amusements, Inc. v. State, 106 Ga. App. 663, 664 (1962), decided September 7, 1962, has on House Bill 352.
I have considered this decision of the Court of Appeals and find that it has no effect on the constitutionality of House Bill 352. This Bill simply legalizes the maintenance and operation of a certain

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defined class of pin-ball machines-machines which were found to be lotteries by the Court of Appeals in the above decision. Of course, it is completely within the authority of the legislature to do this.
April 15, 1963
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
Some uncertainty appears to have arisen with respect to the 'Status of male members of the Crime Laboratory and whether or not they are considered "enforcement officers" within the meaning of Section 15 of the Employees' Retirement System Act which would entitle them to retirement at age 56 instead of age 60.
You have asked this office for a clarification of the status of this group of personnel with respect to their retirement age.
On June 11, 1962, this office advised you that in our opinion male members of the Crime Laboratory are not "enforcement officers" within the meaning of Section 15 of the Employees' Retirement System Act and are therefore not entitled to claim early retirement privileges as provided in that section.
On January 25, 1963, the Personnel Officer of the Department of Public Safety asked the State Merit System to establish a civilian class for agents of the Georgia Bureau of Investigation in order to emphasize the difference between GBI agents and members of the Uniform Division of the Department of Public Safety and to make the full complement of the Uniform Division available for traffic duty. The State Merit System complied with that request.
Thereafter, the Director of the Georgia Bureau of Investigation asked this office whether the newly designated class "civilian" changed the status, duties, salaries or any other aspects of the employment of persons in the Georgia Bureau of Investigation, including male members of the Crime Laboratory. By letter dated March 4, 1963, we replied that such status, duties, salaries, and other aspects of employment remained unchanged.
Our letter dated March 4, 1963, was not intended to change, nor did it change, the conclusions reached in our letter, dated June 11, 1962, to the effect that male members of the Crime Laboratory retained as "Special Agents" are not "enforcement officers" within the meaning of Section 15 of the Employees' Retirement System Act.
We therefore reiterate our opinion that those employees are not eligible to retire at age 56 as "enforcement officers."

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April 15, 1963
OPINION TO THE DEPARTMENT OF REVENUE
I am pleased to acknowledge your letter in which you requested my opinion as to whether professional associations are subject to domestic corporation taxes.
The Georgia Laws 1961, p. 404, confer upon professional associations in Georgia almost all of the rights and duties of other domestic corporations. There is no express or implied provision in the said Georgia Professional Association Act which would grant to professional associations any exemption from any taxes, whatsoever.
Therefore, I am of the opinion that professional associations in Georgia are subject to franchise taxes on domestic corporations.
In addition, the Georgia Laws 1962, p. 454, contain an Act which amends the previously cited law so as to make professional associations expressly subject to Georgia income taxes.
April 17, 1963
OPINION TO THE GOVERNOR
You have requested that I advise you further, in addition to my opinion of April 1, 1963, whether the terms of H.B. 622 would prohibit the sale of firearms by persons not regularly engaged in the business of firearms but rather engaged in the business of holding shows at which displays of certain types of firearms are made and which are attended by persons who collect guns and firearms as a hobby.
In my opinion of April 1, I stated I was of the opinion casual sales between private persons not regularly following and engaging in sale or disposition of firearms as a means of livelihood would be exempt from the applications of the Bill. That remains my opinion as the Bill is quite definite in its terminolo_gy on this point. As applied to gun collectors, under the circumstances outlined by you, it would be my further opinion the average collector who only makes occasional purchases and sales would not be affected by the Bill. It is my feeling his transactions would be considered as casual sales.
I hope this will sufficiently clarify my previous opinion and enable you to pass judgment upon the merits of this Bill.
April 17, 1963
OPINION TO THE GOVERNOR
I am pleased to acknowledge receipt of and answer your letter wherein you request an official opinion regarding the constitutionality of House Bill No. 602.

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House Bill 602 amends the Minimum Foundation Program for Education Act (Georgia Laws 1949, p. 1406), as amended, by adding at the end of Section 11 thereof the following language:
"Whenever, in their opinion, an emergency exists in respect to the placement of pupils in any county school system, in the matter of the consolidation of schools, the County Board of Education or any other authority governing education in a county shall have the power and the sole authority to determine the location of any school for which funds have been provided under the provisions of this Act."
Prior to enactment of the Minimum Foundation Program for Education Act in 1949, the State of Georgia did not provide any State funds for the purpose of participating in the cost of construction of school buildings by local units of school administration. Section 11 of the Minimum Foundation Program for Education Act provides for allotment of capital outlay funds by the State to local units of school administration. It provides that the State Board of Education shall determine the amount of capital outlay funds needed by local units of school administration for school building purposes, and that it shall be the duty of the State Board of Education to establish minimum standards to be met by local units in order to qualify for participation in capital outlay funds and to provide advisory and supervisory services to local units regarding the expenditure of such funds.
The capital outlay provisions of Section 11 of the subject Act were funded commencing with the 1951-1952 school year. At that time the State Board of Education established minimum standards to be met by local units in order to participate in the receipt of such funds. These minimum standards related generally to the nature and quality of schoolhouses to be constructed under this program, teacher-pupil ratios, numbers of pupils to be in average daily attendance at the subject schools, and consolidation of small schools into larger units of operation. Based upon such standards, needs of local units of administration throughout the State were determined. Local units of administration did at that time submit proposed school building and school consolidation programs to the State Board of Education for approval, and included proposals regarding the location of such school buildings, pupils to be placed therein, and the consolidation of small schools. The State Board of Education approved proposals of local units of administration and the State Board and the individual local boards of education entered into a contractual arrangement providing for the allotment of capital outlay funds over an extended period of time for the construction of schoolhouses and consolidation of schools in accordance with the proposals submitted by the local boards and approved by the State Board.
Under the first school building program initiated in 1951, and the second school building program initiated in 1960, approximately two hundred sixty-eight million dollars in State capital outlay funds have been utilized in the accomplishment of these programs. The construction of schoolhouses provided for under these programs has now been completed. In a number of instances, however, local units

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of school administration have failed to consolidate schools and pupils in the schoolhouses constructed under these programs in accordance with the terms of such contracts. As a result, many of the school facilities provided under these programs are not being fully utilized, or are not being utilized in the manner provided for under the terms of such contracts.
The over-all State school building program discussed above has been accomplished by virtue of the provisions of Section 11 of the Minimum Foundation Program for Education Act, and the contracts entered into by and among the State Board of Education, local boards of education, and the State School Building Authority. House Bill 602 adds the above quoted language to the capital outlay provisions of the law contained in Section 11 of said Act. Due to the fact that the subject proposed amendment to Section 11 of said Act contains the language, "for which funds have been provided under the provisions of this Act," I am of the opinion that the obvious purpose and intent of this proposed amendment is to vest in county boards of education power and sole authority respecting consolidation of such schools and placement of such pupils, and hence use of such new schoolhouses in these respects, notwithstanding the provisions of the existing contracts referred to above. It is likewise obvious that the proposed amendment to Section 11 of said Act is clearly intended to be retrospective in nature, retroactive in application, and is not capable of being construed as being prospective in nature.
Article I, Section III, Paragraph II of the Georgia Constitution (Georgia Code Ann. 2-302) provides:
"No Bill of Attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privilege or immunities, shall be passed."
By reason of the foregoing facts, and the above quoted provision of the Georgia Constitution, I am of the opinion that House Bill 602 is a retroactive law, a law impairing the obligations of existing contracts, and is therefore unconstitutional.
April 17, 1963
OPINION TO THE HIGHWAY DEPARTMENT
Your department has requested my opinion whether the State' Highway Department of Georgia is authorized to enter into a contract with the Stone Mountain Memorial Association to "provide a paved roadway on rights of way deeded to DeKalb County outside of the Park area," but in reasonable proximity thereto. Your request indicates that the Stone Mountain Memorial Association proposes to grade and drain the new roadway at its own expense, and it is indicated that the State Highway Department proposes to let a paving contract to the association, in the same manner as contracts are let to counties.

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In an opinion dated March 13, 1961, addressed to the Honorable Willis N. Harden, Member, State Highway Board, I stated that the State Highway Department would be authorized to contract with the Stone Mountain Memorial Association for the expenditure of funds in the construction of roads within the limits of the project. I cited 43-126 and 95-1620 of the Annotated Code, and Article VII, Section VI, Paragraph I, of the Constitution (Georgia Code Ann. 2-5901).
In an opinion dated September 27, 1962, addressed to Honorable Matt L. McWhorter, Chairman, Stone Mountain Memorial Association, I stated my opinion that 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.
In my opinion, the State Highway Department is authorized to enter into a contract with the Stone Mountain Memorial Association to provide a paved roadway on rights of way deeded to DeKalb County outside of the project area, but in reasonable proximity thereto, which is to be constructed so as to conform to the plan of the association.
In view of the provisions in 8 (c) of the Stone Mountain Memorial Association Act (Georgia Laws 1958, pp. 66, 70), and in 43-126 of the Annotated Code, I believe that the road in question should be placed on the State Highway System, pursuant to 95-1711 and 95-1705 of the Annotated Code.
April 18, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opm10n as to whether the City of Toccoa is liable for taxes to Franklin County on its gas transmission line, and whether the City of Jefferson is liable to Clarke County for utility tax.
Since both of these gas distribution systems are financed by revenue certificates, these questions are controlled by the provisions of the Constitution of Georgia, Art. VII, Par. V, codified as 2-6005 .of the Georgia Code Annotated, which provides in part as follows:
"Provided that after a favorable election has been held as set forth above, if municipalities, counties or other political subdivisions shall purchase, construct, or operate such electric or gas utility plants from the proceeds of said revenue certifi-

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cates, and extend their services beyond the limits of the county in which the municipality or political subdivision is located, then its services. rendered and property located outside said county shall be subject to taxation and regulation as are privately owned and operated utilities."
April 19, 1963.
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I have reviewed the information which you turned over to mewith respect to the services offered by the Executive Aeronautical Service, Inc., and the eligibility of the cost of the same as allowable and reimbursable travel expenses for employees of the Regents under the law of the State of Georgia and the rules and regulations promulgated by the State Auditor, and applicable to all departments of the State of Georgia.
I contacted Mr. David R. Ross of the Executive Aeronautical Service, Inc. and requested a brief outline of services offered by his organization.
There is nothing in the Georgia law as far as I have been ableto ascertain that would prohibit employees of the Regents from using the services offered by the Executive Aeronautical Service, but the regulations issued by the State Auditor, and, as I understand it, agreed to by all of the departments of the State Government, provide that "Reimbursement for transportation within the State. may be for use of personally owned vehicles or by common carrier. . . . Reimbursement will not be made for payment to other than recognized common carriers; ... Transportation by common carrier will be by scheduled plane, rail, or bus. . . . Travel by scheduled airline will be by minimum fare service whenever practicable."
The services offered by the Executive Aeronautical Service are non-scheduled and I do not think that the same would comply with the requirements of the regulations issued by the State Auditor. Therefore, I do not believe that under existing travel regulations in force in this State and adhered to by all State departments that employees of the Regents of the University System of Georgia would be authorized to use non-scheduled flight service on the business of the Regents and be eligible for reimbursement of cost therefor.
April 19, 196R
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I have reviewed your file with reference to the request of Mr.. Paul J. Krietner, a student at the Georgia Institute of Technology,, to pay resident tuition fees.

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I agree with the position taken by Mr. Siebert in his letter of April 2, 1963, addressed to Mr. J. R. Anthony, Controller of the Georgia Institute of Technology, to the effect that Krietner would not be eligible to pay resident tuition fees on the basis of the fact that his father is a faculty member at Georgia State College.
The resolution of the Board of Regents dealing with the payment of resident tuition fees by minor children of faculty members is applicable only to the institution of employment.
However, the file which you turned over to me indicates that the parents of Paul J. Krietner, a minor, were transferred to Georgia and purchased a home in Columbus, Georgia, in September of 1961 ; that the Krietners filed for homestead exemption and paid taxes in the State of Georgia in February of 1962. Thereafter the Krietners were transferred to Atlanta and Mr. Krietner was stationed with the military department at Georgia State College in October of 1962. They are presently building a home in Clayton County, Georgia, where Paul A. Krietner intends to retire from the Army in 1965.
In my opinion Mr. Paul A. Krietner, by intent and action established a legal domicile in Georgia in September of 1961, and therefore his son, Paul J. Krietner, a minor, would be eligible to pay resident tuition fees at the Georgia Institute of Technology.
April 23, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to answer your request for an opinion regarding purchase of tax-deferred annuities for employees of public school systems by local boards of education.
You state in your letter that you have received numerous inquiries from teachers, local boards of education, and insurance companies regarding this matter, and you ask:
"Can a local public school system, by mutual agreement, pay selected employees a part of their salary in the form of a nonforfeitable tax-deferred annuity?"
This question arises out of the fact that 403 (b) of the United States Internal Revenue Code was recently amended in such manner as to bring within the terms of such section annuities purchased by local school systems for and on behalf of selected school employees, provided, of course, that such annuities otherwise comply with all terms and requirements of the Internal Revenue Code respecting the same.
Section 403(b) of the Internal Revenue Code (U.S.C.A., Title 26, par. 403 (b)) provides in the case of annuity contracts purchased for employees of educational, charitable or religious organizations Xempt under 501 (c) (3) of the Code (U.S.C.A., Title 26, par.

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501(c) (3)), that if the annuity contract does not come under a qualified nondiscriminatory plan and the employees' rights to the contracts are nonforfeitable, the premiums paid by the employer therefor during the taxable year are to be excluded from the gross income of the employee for the taxable year for Federal income tax purposes, provided the amount of the premium paid does not exceed an allowable "exclusion allowance" for the year. The statute provides for the method of determining the allowable "exclusion allowance."
I appreciate your forwarding to me the various materials, proposed plans, etc. submitted to you by various insurance companies in regard to this matter. I shall not, however, undertake to evaluate or discuss any one of such plans, nor seek to determine whether or not an arrangement permissable under State law will qualify for tax-exempt status under the foregoing Federal statutes. These are Federal questions arising under provisions of the Internal Revenue Code which address themselves to the proper Federal officials. I will, therefore, limit this opinion to the question of whether or not the State law, under the facts presented, requires a negative answer to the question asked by you, and, if not, the status to be accorded such an arrangement under applicable State tax and retirement laws. It is desirable, however, to make a few comments first upon the nature of nonforfeitable tax-exempt annuity contracts and to state the facts presented so that the subject matter might be properly distinguishable from other questions which arise from time to time requiring opinions of this office.
As I understand the materials furnished me and the provisions. of the Internal Revenue Code cited above, annuity contracts such as here contemplated contain no mortality or other insurance fea-. tures whatever, but are singularly designed to provide an annuity at a stated age to the employee-beneficiary thereof. An annuity may be obtained by an employer for and on behalf of individually selected employees. In order for premium payments for such an annuity to be tax-exempt to the employee-beneficiary, the same must be purchased by the employer, but nonforfeitable ownership of the same must be vested in the employee-beneficiary with no ownership rights. therein vested in the employer. From the materials furnished, it likewise appears that purchase of such an annuity for individually selected employees would only be made pursuant to an agreement entered into between the employer, the local board of education, and the individual teacher or other selected school employee for whom the annuity is to be purchased. Such agreement may be reflected in the initial contract of employment executed annually or in a modification of such contract of employment executed subsequent thereto. The premium to be paid for such an annuity would be paid by the employer from funds on hand derived through the agreement bf such teacher or other school employee to reduce the "take-home" pay of the contract salary of such teacher or other school employee. The agreement by the teacher or other school employee to the purchase of such annuity and to the reduction of such teacher or school employee's "take-home" pay in an amount sufficient to pay the premium therefor would be entirely voluntary

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on the part of the teacher or other school employee and would in all events depend upon the assent and voluntary election of such teacher or school employee. The assent of the employing board of education to withhold a portion of a teacher's or other school employee's salary and to purchase such an annuity with such funds would likewise be voluntary. The over-all contract salary of such teacher or school employee would not be reduced. The teacher or other school employeebeneficiary of such an annuity would have nonforfeitable ownership of the same with the right to terminate such annuity at any time, receive the cash value thereof, and thereafter receive the full amount of his or her contract salary during the remaining period of the contract of employment.
In Georgia, local school systems are under the control and management of local boards of education, subject only to the provisions of State statutes and to the exercise of such duties and powers and the establishment of such standards and requirements by the State Board of Education and State Department of Education as may be authorized by law. Article VIII, Section V, Paragraph I of the Constitution of Georgia (Georgia Code Ann. 2-6801) provides in part as follows:
"Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education.. " See also Georgia Code Ann. 32-901.
Independent school systems continue to exit by virtue of the provisions of Article VIII, Section VII, Paragraph I of the Georgia Constitution (Georgia Code Ann. 2-7001) and are likewise generally under the control and management of local boards of education as provided for in the laws creating such independent school systems.
Teachers and employees in local school systems are employed by local boards of education and they are the employees of such boards. See, Ops. Att'y Gen. 183 (1955). The Georgia Code Annotated, in 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."
The right and power of local boards of education to employ teachers and other school employees is exclusive. Green v. Snellville Consol. School Dist., 169 Ga. 667 (1930). Management and operation of local public schools is confined to local boards of education and they are given wide discretionary power in the operation of such schools. See Downer v. Stevens. 194 Ga. 598 (1942), and Boney v. County Board of Education of Telfair County, 203 Ga. 152 (1947).
Georgia laws do not specify the terms or conditions of employment contracts for teachers or other school employees except to

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the extent, as regards teachers and professional personnel, that they be in writing, comply with the minimum salary schedule prescribed by the State Board of Education, and that such teachers, principals, etc. hold certificates issued by the State Board of Education certifying to their qualifications. See Georgia Code Ann. 32-604, 32-605 and 32-606. The question asked by you does not in any manner involve a determination of what the salary of a teacher or other school employee shall be, but merely how the salary, once determined and agreed upon, shall be paid. Where a teacher or other school employee, with the assent of the Board of Education, voluntarily waives his right to receive a portion of his salary in cash, thus reducing his "take-home" pay, and requests that such portion of his salary be paid him in the form of a nonforfeitable tax-exempt annuity, neither his contract salary or his actual compensation is reduced thereby, for he will be deemed to be in actual or constructive receipt of the full amount of his contract salary even though such salary is received by him in different forms. Such teacher or other school employee will be deemed to be in receipt of his entire contract salary for the purpose of applicable State retirement and income tax laws.
Local boards of education are authorized to "make all arrangements necessary to the efficient operation of the schools," which power is, of course, very broad. See Georgia Code Ann. 32-909. I find no law prohibiting local boards of education from entering into such contracts of employment with teachers and other school employees. I am, therefore, of the opinion that local boards may, if they so desire, and with the consent of teachers and school employees, lawfully enter into contracts of employment of the nature discussed above.
April 24, 1963
OPINION TO THE DEPARTMENT OF REVENUE
You requested my official opinion on the following question: The United States Congress appropriates federal funds for the use of the various State National Guard Organizations. These funds are by statute distributed to the various States in direct proportion to the enlisted strength of the respective units. The funds are spent by a Federal Property and Fiscal Officer, who contracts and purchases under federal regulations. Would motor fuel purchased by such an Officer, when purchased with these funds, for the use of the Georgia National Guard be taxable under the Georgia Motor Fuel Tax Law, or would such purchases be exempt under Georgia Code Ann. 92-1403 (D) (3), which allows an exemption for the sale of motor fuel to the United States of America when said fuel shall be purchased and paid for by the United States of America?
The Motor Fuel Tax Law of the State of Georgia, found in the Georgia Code Ann. Chapter 92-14, clearly intends to tax motor fuel purchases made by the State of Georgia. Georgia Code Ann.

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92-1402 (J) says: "'Distributor' shall mean and include any person (including the State of Georgia and any political subdivision thereof....) " (emphasis added)
It is not unusual for the sovereign state to tax its various subdivisions. See Wright v. Fulton County, 169 Ga. 354 (1929). Indeed, the State may tax one agency of the State Government for the benefit of another. See Tax Commissioner v. Board of Education 235 Ala. 388, 179 So. 197 (1938).
The same concept is found in the federal structure also. Specifically when federal purchases are made of gasoline products the 4 cents federal excise tax is paid by the federal government. Internal Revenue Acts 1943, 307 (a), amending 3442 of the Internal Revenue Act of 1939.
The State of Georgia may not directly impose the legal incidence of a tax upon the federal government. However, this constitutional immunity of the United States is not infringed upon by a tax which places the legal incidence upon someone other than the federal government. This is true even though the person upon whom the legal incidence of the tax falls must pass the economic burden on to the federal government. See Alabama v. King & Boozer, 314 U. S. 1, 69 S. Ct. 43, 86 L. Ed. 3 (1941) See Wood Bros. Const. Co. v. Bagley, 232 Iowa 902, 6 N. W. 2d 397 (1942), and the cases cited therein.
Specifically a :privilege or excise tax may be imposed upon a supplier or contractor who deals with the federal government. See Esso Standard Oil Co. v. Evans, 345 U. S. 495, 73 S. Ct. 800, 97 L. Ed. 1174 (1953). A state may constitutionally impose a gasoline excise tax upon distributors who sell to the federal government. See United States v. Lee,, 153 Fla. 94, 13 So. 2d 919 (1943). That concept has been recognized and upheld by our own Georgia Court. J. W. Meadors & Co. v. State, 89 Ga. App. 583 (1954); Oxford v. J. D. Jewell, Inc., 215 Ga. 616 (1960). Therefore, these purchases of motor fuel for the Georgia National Guard are taxable unless specifically exempted under Georgia Code Ann. 92-1403(D) (3) which exempts purchases made and paid for by the United States.
The question then becomes, is this motor fuel purchased and paid for by the United States? Congress, by annual appropriations, makes funds available to the various states for National Guard purposes. 32 U.S.C.A. 106. These funds are apportioned among the various states in direct proportion to the enlisted strength of the various units. 32 U.S.C.A. 107. These funds are under the direction and control of federal property and fiscal officers. The property and fiscal officer when disbursing these funds is under the control of federal regulations. He purchases under federal contract procedures and the ultimate use and disposition of funds and property are subject to federal regulations. 32 U.S.C.A. 708.
The Georgia National Guard must then conform to the minimum standards as prescribed by federal regulations, otherwise the federal funds will be cut off. These facts do not affect the nature of the National Guard as an instrument of the State. The National Guard re-

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mains a State entity until called into the active service of the United States. See Leberhouse v. United States 126 F. Supp. 217, 218 (W.D. N.Y. 1954) ; United States ex rei. Gillett v. Dern, 74 F. 2d 485 (D.C. App. 1934); Spence v. State, 159 N.Y. Misc. 797, 288 N.Y. Supp. 1009 (1936).
In many various fields the federal government appropriates money for the use of state agencies. Almost invariably conditions as to performance are attached to these appropriations. Nevertheless, in a variety of fields these appropriations lose their identity as "federal funds" and become "state funds." Specifically, federal funds made available to the state have been ruled by the federal Comptroller General to be state funds in the following instances: Emergency relief funds, 14 Comp. Gen. 916; agricultural extension funds, 25 Comp. Gen. 868; fair labor products act funds, 28 Comp. Gen. 54. The Internal Revenue Service has dealt with an analogous question concerning Civil Defense funds. In Revenue Ruling 61-77, 1961 Cum Bull. 489, the Revenue Service rule that Civil Defense funds become "state funds."
The Internal Revenue Service has recognized the nature of National Guard purchases as "state purchases." 26 U.S.C.A. 4224 allows an exemption from federal gasoline excise tax for state purchases. The Internal Revenue Service allows this exemption on purchases made by federal property and fiscal officers. The Internal Revenue Service has long recognized that National Guard purchases were for state use. See 1935 Cum. Bull. 413.
An examination of the Georgia Motor Fuel Tax Laws, found in Georgia Code Ann. Chapters 92-14 and 92-14a, shows that the Georgia motor fuel taxes partake of the nature of a road use tax. This is true because the funds collected must be used to construct and maintain the highways. See Art. VII, Sec. IX, Par. IV, of the Georgia Constitution of 1945. It has been specifically held that the federal government may pay a road tax because it derives a direct benefit from the facilities furnished. Tirrell v. Johnston, 86 N.H. 530, 171 Atl. 641, 293 U.S. 533, 55 S. Ct. 238, 79 L. Ed. 641 (1934). The federal government has recognized the necessity of an adequate highway system for national defense purposes. 23 U.S.C.A. 311.
I conclude that the Georgia motor fuel taxes may be collected from the State of Georgia. I conclude that the funds appropriated by the federal government to the State of Georgia for the use of the Georgia National Guard become State funds. This is true even though the funds are disbursed by a federal property and fiscal officer who purchases under federal contracts and performs under federal regulations. When the property and fiscal officer purchases motor fuel for the use of the Georgia National Guard, he is spending State funds and is, therefore, acting as an agent of the State. The fact that in many instances he is also an agent of the Federal Government does not change his nature as a State agent in this situation. In many instances such an officer performs dual functions, as the dual agent of both the Federal Government and the State Government. Therefore, motor fuel purchased with funds appropriated by the Federal Government for the use of the Georgia National Guard is not paid for by the United States and is not

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exempted by the Georgia Code Ann. 92-1403 (D) (3). My conclusion on this point is strengthened by the fact that the Federal Internal Revenue Service treats these purchases as State purchases.
April 25, 1963
SALE OF FIREARMS
This will acknowledge receipt of your request for my opinion as to whether or not the provisions of House Bill No. 622 (Act No. 517), to regulate the sale of firearms, approved April 17, 1963, contain any mandatory requirement for obtaining the license specified therein, and further, as to whether the Act contains any provision whereby a person could be required to obtain the license specified therein.
The Act provides as follows:
Section 1 requires that any of the persons or corporations named therein obtain from the Department of Public Safety a license permitting the sale of firearms within the terms of the Act, prior to such sale.
Section 2 relates to the contents of the application for the license.
Section 3 contains bond provisions.
Section 4 requires that each such license be conspiciously displayed.
Section 5 contains the annual license fees and the license fee for an employer of a dealer.
Section 6 provides for the revocation of the license for nonpayment of the fee.
Section 7 relates to reinstatements of licenses that have been revoked for failure to pay the annual license fee.
Section 8 relates to the revocation of licenses and the grounds upon which the license might be revoked.
Section 9 relates to the procedures to be followed by the Department of Public Safety in holding hearings for any charge other than the failure to pay the annual license fee.
Section 10 relates to the procedure to be followed by the Department and provides for appeal to the superior court.
Section 11 provides for the disposition of fees and for appropriations to the Department for administrative costs.
Section 12 provides an effective date of July 1, 1963.
Section 13 is a severability section; and 14 repeals laws in conflict with the Act.

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The Act does not contain any penalty provisiOn for failure to comply with the Act. No criminal penalty is provided and no injunctive procedure is provided whereby the Department of Public Safety could proceed in a court of equity to compel compliance with the provisions of the Act.
Without more, I am of the opinion that the Department of Public Safety cannot compel compliance with the provisions of the Act, either by criminal proceedings or by equitable proceedings, in that no such procedure is provided for in the Act.
April 29, 1963
OPINION TO THE DEPARTMENT OF REVENUE
You have requested my opinion on the following questions pertaining to the tax on long-term notes secured by real estate:
"1. How shall the tax collected by the Tax Collector or Tax Commissioner of the county where the instrument is first recorded be pro-rated to the Tax Collectors or Tax Commissioners of the other counties.
"2. Should the 6% commission be retained by the Tax Collector or Tax Commissioner where the instrument is first recorded?"
Section 92-164 of the Georgia Code Annotated requires every holder of a long-term note secured by real estate to record such security instrument in the county in which is situated the real estate conveyed or encumbered or upon which a lien is created to secure such note or notes, and further requires that prior to presenting such instrument for recording the holder of such long-term note shall pay an intangible tax measured by the amount of the debt as evidenced in the security instrument.
Section 92-169, the applicable part of which is set out below, provides that where the real estate securing such instrument of indebtedness is situated in more than one county, the intangible property tax shall be paid to the Tax Collector or Tax Commissioner of the county in which such instrument is first recorded. Such instrument may then be recorded in any other county of the State without payment of further taxes.
"92-169. Procedure where encumbered real estate situated in more than one county; where incumbrance covers property within and without State and is held by nonresident of State.If any instrument required to be recorded hereunder shall convey, or encumber, or create a lien upon real estate situated in more than one county, the tax herein required shall be paid to the tax collector or tax commissioner of the county in which such instrument is first recorded. When there has been entered on such security instrument the certificate of the tax collector or tax commissioner or his deputy that the tax im-

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posed by 92-164 has been paid, the instrument upon which such certificate is attached may thereafter be recorded in any other county of this State without payment of any further tax."
Section 92-177 of the Georgia Code Annotated, entitled "Distribution of revenue from taxes imposed by 92-163 through 92-175," provides in the last sentence thereof that "If the real estate is situated in more than one county, the appropriate portion of the tax shall be equitably divided among such counties by the State Revenue Commis:sioner." (emphasis added)
After division of the tax collected among the counties in accordance with the procedure set out above, the amount of the tax thereby appropriated to each county can then be distributed in accordance with the first part of said 92-177, which is as follows:
"92-177 . . . All revenues derived from the tax imposed by 92-163 through 92-175, including revenues from any imposition of such tax upon intangible trust property, shall be distributed among the State and municipality in which the real estate is situated and the county in which such real estate is situated in the same proportion that revenues derived from the tax imposed by 92-117 through 92-159 are divided. . . ."
In answer to your second question, as set out above, it is my opinion that the commission as provided for in Code 92-168 is to be retained by the Tax Collector or Tax Commissioner of the county where the security instrument is first recorded and to whom the intangibles tax is paid. That the Tax Collector or Tax Commissioner collecting the tax is to retain the entire commission is borne out by the provisions of said Code 92-168, wherein it is stated "... the tax collector or tax commissioner shall retain six percent of the tax collected as compensation for his services in collecting this tax ..."and that the commission is reduced to 4 per cent in counties having a population of more than 300,000 according to the last or any subsequent United States census, which latter provision is set out below.
"92-168.... 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.
It is readily apparent that the properties covered by the security instrument can lie in both 4 per cent and 6 per cent counties and that since no specific recognition was given to this possible situation by said Code section in the way of pro-rating the commission among the tax collectors and tax commissioners of the various counties involved it must have been the intent of the Legislature that the rate of commission be determined by the size of the county in which the instru-

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ment was first recorded and that the Tax Collector and Tax Commissioner collecting the tax in that county retain the entire commission.
April 29, 1963
OPINION TO THE DEPARTMENT OF VETERANS SERVICE
This will acknowledge receipt of your request for my opinion as to whether the Director of the Department of Veterans Service may legally receive a salary and necessary travel expenses from federal funds for the performance of his duties and responsibilities as executive officer of the Veterans Service Board in the operation of the Georgia State War Veteran's Home. You state that any compensation as salary or necessary travel expenses will be paid wholly from federal funds.
Article V, Section VI, Paragraph 1 of the Constitution (Code Ann. 2-3501) creates the Veterans Service Board, defines its duties and powers, and provides for the appointment of a Director who is to be the executive officer of the Department.
Article III, Section XI, Paragraph I of the Constitution (Georgia Code Ann. 2-2301) as amended, provides that the General Assembly may at any time by a majority vote of both branches prescribe other and different salaries for all the elective offices provided for in the Constitution, but no such change shall diminish the amount of any salary set forth in the Constitution.
The applicable statutes are found in Georgia Laws 1945, page 319, as amended, particularly by an Act approved February 26, 1957 (Georgia Laws 1957, p. 165), and in particular 5 thereof; and Georgia Laws 1955, Extraordinary Sess., page 18, as amended, particularly by an Act approved March 23, 1960 (Georgia Laws 1960, p. 1150), and in particular 6 thereof.
Section 5 of the 1945 Act, as amended (Georgia Code Ann. 78409), after setting the compensation of the Director, provides:
"In addition to the above compensation, the State Board of Veterans' Service is hereby authorized to fix such additional compensation for the Director from Federal funds as may be authorized by the Federal Government for services performed and travel expenses incurred."
Section 6 of Georgia Laws, 1955, Extraordinary Sess., page 18, as amended (Georgia Code Ann. 78-1106) provides in part:
"All funds received by the Veterans Service Board shall be expended for the care and support of disabled war veterans. At the discretion of the Veterans Service Board, funds received from any source by the said Veterans Service Board may be expended in any manner whatsoever for the care and support of disabled war veterans including veterans of the Korean hostili-

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ties, including the purchase of supplies, food, clothing, equipment, personal and real property, the erection of suitable buildings as well as for necessary repairs on existing facilities of the said Georgia State War Veterans' Home. The Veterans Service Board is hereby authorized to hire employees, including technical personnel, as necessary in order to carry out the provisions of this Act...."
From the above, I am of the opinion that with the requisite action of the Veterans Service Board, the Director would be authorized to receive from federal funds additional compensation for his services and necessary travel expenses for the performance of his duties and responsibilities in connection with the operation and administration of the Georgia State War Veterans' Home, such compensation to be payable exclusively from federal funds.
April 30, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to answer your request for an opinion concerning whether or not a person who is under Civil Service (an employee of the Federal Government) is eligible to be a member of a county board of education in a county where the board members are elected by the people.
I can find no prohibition, under State law, which would prevent a member of a county board of education from being an employee of the Federal government. Such an employee, therefore, would be eligible, under State law, to be a member of a county board of education. However, I call your attention to the applicable portion of the Federal law more commonly known as the 'Hatch Act' - 9 (a) of said Act 5 U.S.C.A. 118 ;) , which reads as follows:
"It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interferring with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term 'officer' and 'employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal Laws...."

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Therefore, while I can find no prohibition, under State law, which would prevent a member of a county board of education from being an employee of the Federal government, it is my opinion that such an employee of the Federal government, would be subject to the penalties of the 'Hatch Act,' which could include the loss of his job- 9(b) of said Act (5 U.S.C.A. 118 ;) -unless he comes within the exceptions provided in 9(a) of said Act, supra.
This opinion, of course, concerns and is limited to employees of the Federal government who are eligible to be members of a board of education in a county where the board members are elected by the people.
May 3, 1963
OPINION TO THE PURCHASING DEPARTMENT
Thank you for your letter enclosing Requisition No. TSB-2209, dated April 20, 1963, concerning the proposed purchase of one 72passenger bus for the Georgia Training School for Boys, Milledgeville, Georgia, in which you request 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 Georgia Training School for Boys, but the said vehicle will be used only for transporting students of the Training School engaged in educational, recreational, religious, and other activities considered conducive to their rehabilitation. This same view was expressed in the Ops. Att'y Gen. 146 (1948-49).
May 3, 1963
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
This will acknowledge receipt of your letter requesting my ruling as to the constitutionality of the Junior College Act of 1958 (Georgia Laws 1958, p. 47), and particularly as to 5 of the Act which deals with the payment of State funds to local operating authorities for the support of junior college operations.
For your convenience and easy reference, I would like to set out a brief synopsis of the Act.
The short title of the Act is "Junior College Act of 1958," and the system established by the Act shall be known as the "Junior College Program of the State of Georgia."

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<~Junior College" is defined to mean a community educational institution constructed and operated by a local operating authority, which offers a course of study extending beyond the high school level.
<~Local Operating Authority" means any city, county, county school system, independent school system, school system established prior to the adoption of the Constitution of 1877 or any other political subdivision of the State created for college purposes and possessing the power to tax, which possesses requisite powers under the Constitution and laws of this State to establish a college, or any combination of two or more of said political subdivisions and local operating authorities may establish and maintain and operate junior colleges under the provisions of the Act.
Prior to the establishment of a junior college or colleges under the terms of the Act, the local operating authorities shall receive the approval of the Board of Regents. The Board of Regents shall have complete authority to approve or disapprove the establishment of a junior college under the terms of the Act, and shall have the authority to prescribe all of the minimum standards which shall prevail in the establishment and operation of such institution.
There shall be paid to every approved junior college operated by a local authority a certain sum of money for each fulltime student as determined annually by the Board of Regents, which shall not be less than $300.00 per academic year for each fulltime student. Such sums shall only be paid or payable to the local operating authority by the Regents if the Regents shall annually first declare by resolution that funds are available therefor without hampering the operation of or reducing the efficiency of any unit of the university system.
The Regents shall adopt rules and regulations fixing policies and standards entitling the local operating authorities to receive State aid, and if there is a failure to comply with such policies and standards, the Regents shall have authority to withhold or terminate the payment of any State funds.
No junior college established or operated under the terms of the Act shall be a unit of the University System of Georgia.
Provisions for sufficient funds to insure the operation of the Act may be made in the General Appropriation Act as enacted by the General Assembly.
The Board of Regents may cease operation of any school established under the Act at any time said Board desires, and thereafter no funds shall be payable to the local operating authority.
Before proceeding directly to discuss the constitutionality of the Junior College Law of 1958, I would like to point out that the implementation of the law is not dependent upon a proposed amendment to the Constitution for the establishment of colleges by political subdivisions, which failed of ratification in the general election in November, 1958. The proposed amendment to the Constitution (Georgia Laws 1958, p. 513), which failed, would not by such failure preclude local operating authorities which otherwise had constitutional or legal

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authority from establishing junior colleges under the provisions of the 1958 Junior College Law.
I should also like to make it clear that there is no relationship between the Junior College Law of 1958 and the Junior College Law enacted by the General Assembly in 1963. Under the 1963 Junior College Law, any institution operated thereunder would be operated as a unit of the University System of Georgia. Junior colleges operated under the law of 1958 would not be units of the University System of Georgia, and would have to be established pursuant to constitutional or legislative authority outside of the 1963 Junior College Law.
It can be readily seen that if any junior colleges are operated under the 1958 law, the State of Georiga would be supporting two separate systems of junior colleges within the State; one operated directly under the provisions of the Constitution and laws governing the operations of the Board of Regents of the University System of Georgia, and one operated independently by local operating authorities, subject to criteria and standards as approved and prescribed by the Board of Regents.
In construing the constitutionality of the 1958 Act, the question may be raised as to whether the money to be paid under the provisions of 5 of said Act comes within and under the provisions specifying the purposes for which taxes may be levied. The Constitution of the State of Georgia specifies legitimate purposes for which taxes may be levied. Article VII, Section II, Paragraph I (Georgia Code Ann. 2-5501) provides in part as follows:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
. . . 2. For educational purposes."
In addition Article VIII, Section I, Paragraph I of the Constitution (Georgia Code Ann. 2-6401) provides in part as follows:
"The provisions of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation...."
Appropriations of public funds must be for public purposes, and "the test of whether a particular activity may rightfully be considered a duty or obligatory function of government is whether the welfare of the State as a whole is substantially promoted by or involved in its exercise." 42 AM. JUR. Public Officers 57 (1942).
In light of these principles, it is my opinion that the purposes for which State funds would be spent for the establishment and operation of junior colleges under the 1958 Act would be constitutional unless (1) the sums to be paid by the State through the Board of Regents of the University System of Georgia constituted a donation or gratuity, or unless (2) the Act in question involved an unconstitutional delegation of legislative authority, or unless (3) the Act resulted in the assumption of the debt of a county or other political subdivision by the State in contravention of the provisions of the

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State Constitution. I will deal with each of these possible constitutional objects to the 1958 Act separately.
1. Article VII, Section I, Paragraph II of the Constitution (Georgia Code Ann. 2-5402) provides in part:
"The General Assembly shall not by vote, resolution, or order, grant any donation or gratuity in favor of any person, corporation or association."
While a county and a municipality are corporations, they are nevertheless political subdivisions of the State, and it is extremely doubtful whether such constitutional prohibition against gratuities would apply to such political subdivisions of the State unless specifically named therein. Lingo v. Harris, 73 Ga. 28 (1884). A gratuity, as prohibited by the Constitution, has been defined as a "present, a recompense, a free gift." McCook v. Long, 193 Ga. 299, 303 (1942).
It has further been defined as "something voluntarily given in return for a favor or especially a service; hence a bounty, tip, a bribe." This constitutional provision has been construed by our State Courts and by the United States Supreme Court, with the result that, where there is involved a "consideration for the legislative grant, either past, present or future," it has not been construed as a "gratuity." State Highway Department v. Bass, 197 Ga. 356 (1944).
When the recipient of an appropriate sum furnishes a consideration to the State for a grant, it is not a gratuity. Trotzier v. McElroy, 182 Ga. 719 (1936).
In the case of Brock v. Chappell, 196 Ga. 567 (1943), it is stated:
"Although the constitution, art. 7, sec. 16, par. 1 (Code, 2-6401), prohibits 'any donation or gratuity in favor of any person, corporation, or association' to be made by a county (Atlanta Chamber of Commerce v. McRae, 174 Ga. 590, 163 S.E. 701, and cit.), the alleged proposed payment of $5000 to a named hospital in a county, 'in order to take care of the hospitalization of the indigent sick of' the county, in consideration of which the hospital has agreed that 'they will provide a ward' to the county for such purpose, would not fall within the inhibition against donations and gratuities."
There are a number of cases where municipalities and counties have contracted or otherwise abrogated certain duties imposed upon them to private institutions (certain medical or charitable institutions), and have granted the funds to the private institutions to carry out such duties without violating any constitutional provisions. See in this connection Aven v. Steiner Cancer Hospital Inc., 189 Ga. 126 (1939).
As has been stated above, the State has the right and the duty to provide education for its citizens, and the State may delegate this authority to various subdivisions. Sheffield v. State School Building Authority, 208 Ga. 575 (1952). The State, therefore, receives a valuable consideration for its grant in the form of services performed by the various school systems.

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In the case of State v. Trustees of Cincinnati Sou. Ry., 248 U.S. 26, 39 Sup. Ct. 191, 63 L. Ed. 104 (1918) where the State granted a free right of way for railroad purposes, it was held that the grant was not a gratuity, the Court stating that a "conveyance in aid of a public purpose from which great. benefits are expected is not within the class of evils that the Constitution intended to prevent."
It is, therefore, my conclusion that the 1958 Act does not provide for the granting of a gratuity, as there would be a legal consideration flowing to the State for any grants made under the 1958 Act.
2. Does the 1958 Act violate the provisions of Georgia Code Ann. 2-1301, which states that
"The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives,"
in that the same is an unconstitutional delegation of legislative powers? The Act vests the exclusive right to disburse the funds made available in the Board of Regents, which is vested with the power to approve a junior college or to terminate the operation of said college, and, also, to withhold funds if there has been a failure to comply with policies and standards set by the Board of Regents, or if provision of funds under the Act would hamper the operation or of reduce the efficiency of any unit of the university system. While there are no standards set by which the Board of Regents shall make its determination in the establishment and operation of such institutions, it is my opinion that the 1958 law does not constitute an unconstitutional delegation of legislative power to the Board of Regents.
The case of Freeney v. Pate, 185 Ga. 1 (1937) holds:
"Nor does such act violate art. 3, sec. 1, par. 1, of the constitution, providing that the legislative power shall be vested in a General Assembly ... upon the contention that the Act undertakes to confer legislative functions upon grand juries, since the Act does not delegate any legislative power but itself creates the office, to become operative in any particular county on the condition or contingency of recommendation by its grand jury...."
In the Freeney case the act of the legislature provided for the appointment of a county probation officer by the judge of the superior court of any county upon the recommendation of the grand jury. In the Junior College Law of 1958, the legislature provides for a system of junior colleges, and the creation and establishment of institutions subject to the approval of the Board of Regents.
In the case of Bibb County v. Garrett, 204 Ga. 817, 826 (1949), the Supreme Court states:
"It may be said that the prohibition against delegation of legislative powers does not preclude the General Assembly from vesting in some other authority the administrative power to regulate and control. 'The difference between the power to pass a law and the power to adopt rules and regulations to carry into

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effect a law already passed is apparent and strikingly great; and this we understand to be the distinction recognized by all of the courts as the true rule in determining whether or not in such cases a legislative power is granted. The former would be unconstitutional, whilst the latter would not.' "
The legislature clearly did not delegate to the Board of Regents the power to establish or create a system of junior colleges, nor the Junior College Program of the State of Georgia. The legislature, by its action, established the system and the program and autliorized the various political subdivisions to establish and maintain and operate junior colleges. The legislature did delegate to the Board of Regents the administrative power to adopt rules and regulations fixing policies and standards, and to approve, regulate and control the payment of funds in support of the junior college program of the State of Georgia. In my opinion this would not amount to an unconstitutional delegation of legislative power to the Board of Regents.
3. The Constitution, Article VII, Section III, Paragraph V (Georgia Code Ann. 2-5605) provides:
"Assumption of debts forbidden.-The State shall not assume the debt, nor any part thereof, of any county, municipal corporation or political subdivision of the State...."
This possible constitutional objection to the 1958 Junior College Law is readily answered by another provision of the Constitution which has been cited above, i.e., 2-6401, which states that the provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia. The implementation of the Junior College Act of 1958 would not result in the assumption of a debt of a county or other political subdivision by the State.
In conclusion I find no constitutional infirmity in the Junior College Act of 1958.
May 3, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge receipt and answer your request for an opinion relative to Federal Public Law 87-94, 75 Stat. 213, 40 U.S.C.A. 434 (n), which law requires that state agencies for surplus property must enter into a cooperative agreement with the U. S. Department of Health, Education and Welfare for the use of surplus property in carrying out its operations.
You state in your letter the following:
"I shall appreciate your official opinion as to whether or not the Georgia State Agency for Surplus Property has the authority to enter into an agreement with the Department of Health, Education and Welfare to use surplus property in its operation.''

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This question arises out of the fact that 434 (n), Title 40 U.S.C.A. (Public Law 87-94), supra, requires that a state agency for surplus property desiring to utilize surplus property in its operations must enter into a cooperative agreement with the U. S. Department of Health, Education and Welfare. It is my understanding that under regulations of the Department of Health, Education and Welfare, the State Department of Education itself, other than the State Agency for Surplus Property, is not eligible to receive and use surplus property distrubted by the State agency. Public Law 87-94, supra, also provides that with the approval of the Federal Administrator of the General Services Administration, title to surplus property can be vested in the state agency.
It is my further understanding that at the present time the State Agency for Surplus Property is using surplus property in its operations but the use of the property is not in accordance with the recently passed law, Public Law 87-94, supra, and that under this law it is necessary for the said state agency to enter into a cooperative agreement if it wishes to continue to utilize surplus property.
In my opinion the State Agency for Surplus Property is a legal unit of the State Department of Education, subject to the rules, regulations, supervision and control of the State Board of Education.
The State Board of Education is authorized and empowered "to receive, accept, hold and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property of every kind and character, to lease, manage and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia, and to accept on behalf of the State of Georgia any funds which may now or hereafter be provided for . . . under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of schools...." (Georgia Code Ann. 32-413).
The Board is further authorized and empowered to acquire "and hold title for and on behalf of the State of Georgia, for the benefit of the common school system and for any equipment and/or supplies, both permanent and expendible, that may be necessary for such purposes, and to act as the contracting agent therefor and the custodian thereof, and to delegate in whole or in part, any function or activity numerated or contemplated hereunder, and to contract with and cooperate with any department, agency or instrumentality, either of the State of Georgia, or of the United States, in any manner which shall be requisite or incident hereto, which in the judgment of said Board may be deemed proper for the carrying into effect the purposes of this chapter ...." (Georgia Code Ann. 32-413).
In view of these circumstances and authorities, I am of the opinion that the State Board of Education can delegate by resolution to the State Agency for Surplus Property authority to enter into a coopertive agreement with the United States Department of Health, Education and Welfare in order to utilize surplus property in accordance with Public Law 87-94, supra.

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OPINION TO THE DEPARTMENT OF EDUCATION
You request my opinion concerning the application of Georgia Code Ann. 59-318 and 59-319 (Georgia Laws 1959, pp. 424-425) to members of county boards of education in counties where such board members are appointed by the grand jury.
You state in your letter that this is a question at issue in at least two counties at the present time and you ask:
"If the clerk of the court fails to publish notice of the appointment of a member of a county board of education as provided by law, does the board member appointed by the grand jury hold office legally if his commission has been issued by the Secretary of State?"
Section 59-318 reads as follows:
"Whenever it is provided by law that the grand jury of any county shall elect, select or appoint any person to any office, notice thereof shall be given in the manner hereinafter provided."
Section 59-319 reads as follows:
"It shall be the duty of the clerk of the superior court to publish in the official organ of the county, a notice that certain officers are to be elected, selected or appointed by the grand jury of said county. Such publication shall be made once a week for two weeks during a period not sooner than 60 days prior to such election, selection or appointment. The cost of such advertisement shall be paid from the funds of the county, and it shall be the duty of the governing authority of the county to promptly pay said cost."
The above code section provide for the manner and frequency of the publication of notice that certain officers are to be elected, selected or appointed by the grand jury. In my opinion, the said code sections are applicable to members of county boards of education appointed by a grand jury.
There is a provision that the cost of advertisement shall be paid from county funds, Ga. Code Ann. 59-319, supra. There is no provision in said Act or code section that such an appointment or election is void where the clerk fails to public the notice. This provision imposes a duty upon the clerk of the superior court and does not appear to render any such appointment invalid. In such a case where the clerk fails to publish the notice, the clerk would merely be responsible for his own negligence under the law, as provided in 24-2721 and 24-2715 (18).
It is therefore my opinion that after the commission of appointment has been issued by the Secretary of State, it would be a valid one, notwithstanding the fact that the clerk failed to publish the notice.

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May 7, 1963
OPINION TO THE MERIT SYSTEM OF PERSONNEL ADMINISTRATION
In your recent letter you stated the State Personnel Board was requesting an official opinion as to the legal rights of the Board in deciding appeals from dismissals coming before it for hearing.
The act establishing the State Merit System and its Personnel Board (Georgia Laws 1943, p. 171, as particularly amended by Georgia Laws 1960, p. 1162, found in Georgia Code Ann. Chapter 40-22) has two sections which are pertinent to your question. Section 3 of the original act as amended (Georgia Code Ann. 40-2207) sets forth the duties and functions of the Merit System Council. Among these is the power 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 include provisions for . . . appointments, promotions, transfers, demotion, separation, tenure, reinstatement, appeals, service ratings, payroll certification, and other phases of Merit System Administration . . . Such rules and regulations when approved by the Governor shall have the force and effect of law ..." (emphasis added)
Section 4 of the original act (Georgia Code Ann. 40-2208) deals with dismissal of employees. It, in part, provides:
"No employee of any department which has been brought under this chapter . . . and who is included under the rules and regulations prescribed by the Merit System Council may be dismissed from said department except for good cause as shall be specified in the rules and regulations of the Merit System Council: ... Any employee who is dismissed shall have the right of appeal under the terms of rules and regulations prescribed by the Merit System Council. The decision of the Council on such an appeal as to whether or not the dismissal was for P'rop,er cause and in accordance with the rules and regulations prescribed by the Council shall be binding upon the commissioner or director of the department dismissing such employee . . ." (emphasis added)
I find the Rules and Regulations of the State Personnel Board, in 12.400, provide for dismissal of employees and set forth grounds which shall justify a dismissal for "cause." No mention is made of appeal in that section. However, 14.100, "Appeals Procedures," sets up the method and procedures which will be followed in all appeals. We then have 14.600, "Appeal From Dismissal, Suspension, Disciplinary Salary Deductions, Or Demotions," which supplements 12.400 by specifically authorizing an appeal to the Board by any permanent employee who is dismissed or otherwise faced with an adverse change in his rights.
Nowhere in your rules and regulations am I able to find where the Board has sought to exercise the power granted to it by 3 of the

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original act by setting forth any criteria for decisions of the Board beyond those provided in 4. In the absence of any such rules and regulations, 4 is the sole source of authority on the subject of appeals decisions and must govern as written.
You also furnished me with an excerpt from the minutes of the meeting of the Board for consideration in this question. I have carefully reviewed the appeals procedure as set forth and feel it does not qualify as an exercise of the rule-making power of the Board on the subject of decisions on appeals. It does not seem to have been adopted with all the formalities necessary to become a rule, there being no indication it was approved by the Governor as is required by 3 of the Merit System Act before a rule becomes authoritative. Even were this not the case, its subject matter is procedural matter and is made subject to the provisions of 14.201 of the rules and regulations which is concerned solely with hearing officers. In my opinion, no additional verbiage included in a procedural outline can be held to affect or make changes in substantive matters.
Therefore, it is my opinion the Board may, at the present time, only determine whether or not a dismissal was for proper cause and in accordance with the rules and regulations of the Board.
May 7, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion as to whether or not private property owned by an individual is subject to property taxes where the property is physically located on property owned by the United States.
The question posed in your letter is controlled by the decision of our Supreme Court in the case of International Business Machines, Corp. vs. Evans, 213 Ga. 333 (1957). The Court held that the property was subject to taxation.
The property involved in the International Business Machines case was equipment located in Houston County, Georgia at Robins Air Force Base. The Court held that the ceding of lands to the Federal Government does not cause them to cease to be a part of the territory of the State. The Court stated, at page 338:
"This does not mean that the United States is restricted in the full use of its property, free from any State interference. The legislative acts, Code (Ann.) 15-301, 15-302, and 15-303, must be construed in pari materia with the Constitution. Code (Ann.) 2-5401. When thus construed, they mean that the United States has no right to prevent such taxation so long as such taxation in no wise interferes with the business of the United States. Taxing the private property could not conceivably interfere with the government's business. Davis v. Smith, 197 Ga. 95 (28 S.E.2d 148) ; Davis v. City of Atlanta, 206 Ga.

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652 (58 S.E.2d 140); Thompson v. Union Pacific R. Co., 76 U.S. 579 (9 Wall, 579, 19 L. ed. 792); Railroad Co. v. Peniston, 85 U.S. 5 (18 Wall, 5, 21, L. ed. 787); Smith v. Davis, 323 U.S. 111 (65 Sup. Ct. 157, 89 L. ed. 107). It could hardly be doubted that the United States is aware of the importance to government of taxation. That government would not wish to furnish a haven for tax dodgers. Unless this State attempt to tax is sustained, this private property will escape its just and fair burden of taxation. The State has not waived and can not waive its right to tax it, and indeed the Constitution demands that it be taxed. Code (Ann.) 2-5401, 2-5404."
It is, therefore, my opinion that the property is subject to taxation.
May 7, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an opinion as to the application of Georgia Code Ann. 92-5712 and 92-5713 with reference to releasing of property for the benefit of the security deed holder where there is no other real property owned by the taxpayer.
Section 92-5713 has no application to the problem stated in your request as it applies only to land owners and their transferees. It has no application in cases involving security interest holders. Brown v. Nash, 216 Ga. 303 (1960).
The Supreme Court of Georgia, in the case of Aldridge v. Federal Land Bank, 203 Ga. 285 (1948), held that 92-5712 refers to both real and personal property. The holder of a security interest was held to have a right under that section to pay the tax on the land and have the same released on the execution without paying the tax on the personal property involved in the execution, even though the taxpayer owned no other real property. The last mentioned case, in my opinion, the controlling authority.
May 7, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request concerning the protest of Blue Bird Finance Company to the imposition of intangible property taxes on notes receivable issued by Georgia counties for the purchase of school buses.
Blue Bird Finance Company relies upon the provisions of 7 of the Intangible Tax Act was it originally passed for its exemption.

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Section 7 of the Intangible Tax Act, as it passed originally, provided for the exemption of "the evidence of debt of the State of Georgia, its public institutions and its municipal corporations and subdivisions; and obligations of the United States government." Georgia Laws 1937-38, Extra Session, pp. 156, 163.
So much of the Act of 1937-38 as exempted these evidences of indebtedness has been repealed. The Constitution of this state, as amended in 1945, deleted the same from the list of property exempt from taxation. In this connection see Art. VII, Sec. I, Par. IV of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-5404) and the enabling acts of the legislation contained in Georgia Laws 1946, p. 12 and Georgia Laws 1947, p. 1183 (Georgia Code Ann. 92-201, 92-130).
It is my opinion, based upon the above-quoted authorities, that the protest of Blue Bird Finance Company should be denied as such intangible property is no longer exempt from taxation in this State.
May 8, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge your request concerning school property in Tift County, with the enclosure from Superintendent, Guy L. Taylor, of the Tift County Public Schools System.
He states that the Tift County Board of Education owns property located in Tifton which is no longer needed as a school site, and that the school board desires to make some disposition of the property, such as a long-term lease arrangement with an organization planning to use the property for commercial purposes.
You request my official opinion as to whether or not the Tift County Board of Education can legally enter into a long-term lease agreement with an organization which plans to use property which is no longer needed as a school site for commercial purposes.
The question depends upon whether or not the board of education would be acting beyond the scope of its lawful jurisdiction in leasing the property.
If the board has no authority to execute such a lease, the members of the board might thereby subject themselves to individual liability. In this regard, Duffee v. Jones, 208 Ga. 639, 645-46 (1951), held:
"When the board of education acts upon matters lawfully within its jurisdiction, it is the county acting through its corporate authority, and a county is not liable to suit for any cause of action unless made so by statute. Code 23-1502 ; Hammond v. County of Richmond, 72 Ga. 188, but when the board of education, through its members, acts beyond the scope of its lawful jurisdiction and commits an actionable wrong, the act so committed is not 'county action,' and in such a case a

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suit may be maintained in the courts of this State against the wrongdoers."
While county boards of education are given general authority by statute (Georgia Code Ann. 32-909) to purchase, lease or rent school sites for educational purposes, the only statute (Georgia Laws 1956, p. 10) authorizing a county board of education to lease property owned by the said board contains the following restrictions:
"shall have authority to lease only schoolhouse or other school property for private educational purposes to any person, group of persons, or corporations which is or will be bona fide engaged in the operation of a private school provided that said lease shall be for a period not longer than five (5) years."
On the basis of the above authorities, I am of the opinion that a county board of education has no authority to lease school property no longer needed for school purposes to private citizens to be used for commercial purposes. The same is not true, however, as to the sale of such property.
Georgia Code Ann. 32-909, provides in part:
"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 school; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education; such conveyance to be executed by the president or secretary of the board, according to the order of the board . . ."
In the Duffee case, supra, the court in interpreting the above code section held at page 644:
"Consequently and pursuant to this, a county board of education has power to and may sell at private sale any schoolhouse property for which it has absolute title when the board finds and by resolution declares that the same is not necessary or convenient for school purposes. But the board has no power or authority under this or any other provision of our law to sell any property which has been conveyed to and accepted by it, or its predecessor in title, in trust for educational purposes, as in this case, except in the manner and way provided for by Code 108-408 and 108-409, which is at public sale after proper leave to sell has been obtained from the superior court."
In the case of Bailey v. County Board of Education of Elbe'ft County, 213 Ga. 308 (1957), the court held:
"Code (Ann) 32-909 in express terms gives to the county boards of education complete ownership of county school property with the right to buy and sell same."
I wrote an unofficial opinion on May 8, 1958, which deals with a very similar subject matter See Ops. Att'y Gen. 98 (1958-59).

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May 8, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you requested an official opinion as to whose duty it is to see that returns are properly filed for State and county taxes on automobiles.
Georgia Code Ann. 92-4611 (7) requires the Tax Receiver in each county to include in his digest a list of all defaulters and the amount of their taxes, and all property assessed by him upon which returns have not been filed. See in this connection 92-6601, 92-6602, and the case of Richmond County v. Steed, 150 Ga. 229 (1920).
The Tax Collector also has a duty to search out and ascertain all taxable property not on the tax receiver's digest. (Georgia Code Ann. 92-4901, Subparagraphs 2 and 3). See also 92-6602, which provides that the Tax Collector has the power and duty to assess and doubletax property when the same was not assessed or when it was overlooked by the Receiver. See also Georgia Code Ann. 92-7110.
The board of county tax assessors is required to examine the returns presented to it by the Tax Receiver and if, in its opinion, any taxpayer has omitted from his return any property that should be returned, the board has the duty to correct the return and assess the property.
The Georgia Code makes it quite clear that each of the officers mentioned above, the Tax Receiver, the Tax Collector, and the board of assessors, has an independent duty to actively cause under-returned property to be placed on the digest and assessed for taxes. This duty applies to both real and personal property and does, of course, include automobiles.
May 9, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request in which you asked for an official opinion concerning the use of certain accounting information by a County Tax Commissioner in arriving at the fair market value of property assessed for taxes.
The accounting information referred to includes such items as cost, depreciation, and book value as it applies to inventory, machinery, equipment, furniture, and fixtures. Georgia Code Ann. 92-5701, provides that all property should be returned for taxation at its fair market value. "Fair market value" is defined by the Code in 92-5702 as follows:
"92-5702. (1004) 'Fair market value,' meaning of.-The intent and purpose of the tax laws of this State are to have all property and subjects of taxation assessed at the value which

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would be realized therefrom by cash sale, as such property and
subjects are usually sold, but not by forced sale thereof, and the words 'fair market value,' when used in the tax laws, shall be held and deemed to mean what the property and subjects would bring at cash sale when sold in the manner in which such property and subjects are usually sold."

It is my opinion that a Tax Commissioner may, for the purposes

of investigating the fair market value of property, legitimately in-

quire into the cost, depreciation, age, and use of property which is

subject to taxation. This does not, of course, mean that the property

is to be returned or assessed for taxation at other than its fair market

value. It does not mean the property should be assessed at book value

rather than fair market value, although in many cases the fair market

value may, in fact, be identical with the book value. The Supreme

Court of this State in the case of Tietjen v. Mayor and Aldermen of

Savannah, 161 Ga. 125, 131 (1925) construed the provisions of Georgia

Code Ann. 92-5702 defining the term "fair market value" as

employed in the tax value, and held that the Code section states a

rule to be applied in arriving at the value at which taxable property

should be assessed and does not purport to limit investigations or the

manner or agencies by which taxing authorities shall inquire into

such values of taxable property.



May 10, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your memorandum requesting an opinion on the liability for intangible taxes of two individuals. The cases are very similar in that both are holders of stock, and in both cases the shareholders are residing in Asia, either as missionaries or as members of the family of a missionary. Also, in neither case was it shown that the taxpayer intends to permanently reside in Asia or that he does not intend to return to Georgia.
Your specific question is this : Are persons now residing in foreign lands as missionaries or members of the family of a missionary liable for intangible taxes on the value of their shares of stock in American Telephone & Telegraph Company and General Motors Corporation?
For the moment putting aside the domicile issue, it would seem clear that there would be a tax liability on a resident Georgian holding shares in the stated corporations. These giants of industry are not corporations organized under the laws of the State of Georgia but are foreign corporations. Also it seems safe to assume that neither of these corporations has qualified its stock for exemption by complying with the conditions enumerated in the proviso of Section II of the Act approved March 18, 1941, Georgia Code Ann. 92-117.2. Consequently, the shareholder has a tax liability for shares of stock in foreign corporations as set forth in the same act.

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Continuing to assume domicile of the taxpayers to be in Georgia, no other exemptions would apply by virtue of their being missionaries, as clearly any profit from the shares inures to their personal benefit. The determination of the domicile of each individual controls the tax liability, and each case must be determined on its own facts.
Of interest in resolving possible confusion growing out of cases involving uncertain (on the part of the taxpayer) jurisdiction to tax is the following:
"fact that intangibles may be taxed in one jurisdiction or may be subject to tax in such jurisdiction does not necessarily exclude liability of the holder of such intangibles to . . . a tax levied by the jurisdiction where the owner of such intangibles may be domiciled." National Linen Serv. Corp. v. Thompson, 103 Ga. App. 786, 789, 790 (1961), citing Fidelity & Columbia Trust Co. v. City of Louisville, 245 U.S. 54, 58, 38 S. Ct. 40, 62 L. Ed. 145 (1917).
Also of importance in these cases is Code 79-406, which spells 'Out the effect of a simple declaration of intention and the rules of law regarding a change of domicile. The necessity of actual presence coupled with an intention to permanently remain is basic in establishing a domicile. In the case at hand we are concerned with whether a change has been accomplished. The intention specified in the above statute has been interpreted in Worsham v. Ligon 144 Ga. 707 (2) (1916) where it was held that under this 79-406 and 79-401, in order to change domicile, a person must remove to another place with intent to remain domiciled there or, having removed, must avow his intent to remain domiciled there.
Of significance is the case of Harkins v. Arnold, 46 Ga. 656 (1872), which holds that change of domicile is a question of intention to be determined by jury.
For assistance in a further study of domicile you might consult several previous opinions rendered by this office. See Ops. Att'y Gen. 91, 92, 160, 169 (1958-59) ; id. at 198 (1957) ; id. at 523 (1954-56) ; id. at 148 (1952-53) ; id. at 340 (1950-51).
The question of domicile of each of the two persons is a mixed question of law and fact and it is my opinion that the Department of Revenue may properly make an appropriate administrative adjudication of the matter.
May 14, 1963
OPINION TO THE SECRETARY OF STATE
Thank you for your letter requesting an official opinion defining the meaning of the term "moral turpitude" as employed in Section II of Article II of the State Constitution (Georgia Code Ann. 2-801).
As you know, this constitutional provision disfranchises "Those of treason against the State, of embezzlement of public funds, malwho shall have been convicted in any court of competent jurisdiction

116
feasance 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."
"Moral turpitude" is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary :rule of right and duty between man and man. The term includes everything done contrary to justice, honesty, modesty, or good morals. All crimes embraced within the Roman's conception of the crimen falsi involve moral turpitude, but it is not safe to declare that only these crimes are so involved. Huff v. Anderson, 212 Ga. 32, 34 (1955) ; Holloway v. Holloway, 126 Ga. 459. 460 1) (1906).
Moral turpitude is involved in the crimes of murder,1 voluntary manslaughter,2 larceny,3 robbery,4 embezzlement,5, extortion,6 cheating and swindling,7 forgery,8 counterfeiting,9 presenting fraudulent claims against the government,l0 issuing checks without sufficient funds with the intent to defraud,/1 perjuryp false swearing,13 statu-
1. Holloway v. Holloway, Ibid.
2. Holloway v. Holloway, Ibid.
3. Ivey v. State, 154 Ga. 63, 67 (1922) ; Shaw v. State, 102 Ga. 660, 671 (1897) ; Ford. v. State', 92 Ga. 459 (1), 460 (1899) ; Doggett v. Simms, 79 Ga. 253, 257 (2) (1888) ; The Georgia Railroad v. Homer, 73 Ga. 251 (5), 258 (5) (1885).
4. United States ex rei. Cerami v. Uhl, 78 F. 2d 698, 699 (2d Cir. 1935).
5. In re Sutton, 213 Minn. 76, 5 N.W. 2d 396 (1942).
6. Librarian v. State Bar, 38 Cal. 239, 328 P. 2d 865, 866 (2) (1952).
7. Thompson v. State, 72 Ga. App. 852, 854 (1945), cert den. 329 U.S. 714, 91 L. ed. 620, 67 S. Ct. 44 (1946) ; Turnipseed v. State, 53 Ga. App. 194, 203 (1936).
8. Johnston v. Riley, 13 Ga. 97 (2), 131 (2) (1853); United States ex. rel. Abbenante v. Butterfield, 112 F. Supp. 324, 326 (2) (E.D. Md. 1953).
9. United States ex rei. Volpev. Smith, 289 U.S. 422(1), 423,77 L.ed. 1298, 1299, 53 S. Ct. 665, 666 (1933) ; United States ex. rei. Schlimmgen v. Jordan, 164 F. 2d 633, 637 (5) (7th Cir. 1947).
10. Huff v. Anderson, 212 Ga. 32 (2, 3), 33 (2) (1955).
11. Bancroft v. Board of Governors of Registered Dentists of Oklahoma, 202 Okla. 108, 210 P. 2d 666, 668 (2) (1949).
12. United States ex rei. Karpay v. Uhl, 70 F. 2d 792 (1) (2d Cir. 1934): United States ex rei. Carella v. Karnuth, 2 F. Supp 998 (2) (W.D. N.Y. 1939).
13. In re King, 165 Or. 103, 105 P. 2d 870, 874(2) (1940).

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tory rape,14 adultery,15 keeping a bawdyhouse,16 and soliciting for prostitutes.H However, moral turpitude is not involved in the crimes of fighting,18 unlawfully selling intoxicating liquor,l9 and driving an automobile on a public road while in an intoxicated condition.20
Of course, a crime involving moral turpitude, to disfranchise under such constitutional provision, must also be "punishable by the laws of this State with imprisonment in the penitentiary."
May 15, 1963
OPINION TO THE PURCHASING DEPARTMENT
Thank you for your letter enclosing Requisition No. 11782, dated May 8, 1963, concerning the proposed purchase of a one passengercarrying type vehicle for the Georgia Forestry Commission 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 Georgia Forestry Commission, but the said vehicle will be used only by a Radio Technician whose duties include the maintenance of approximately 225 two-way radio sets. This same view was expressed in the Ops. Att'y Gen. 146 (1948-49).
The attached affidavit, attesting to the proposed use of the vehicle has been properly executed to meet the requirements of this office and should be attached to said requisition.
14. Ng Sui Wing v. United States, 46 F. 2d 755, 756(4) (7th Cir. 1931) ; Bendel v. Nagle, 17 F. 2d 719, 720 (3) (9th Cir. 1927; Pino v. Nicolls:, 119 F. Supp 122, 128 (10) (D. Mass. 1954).
15. United States: ex rei. Tourny v. Reimer, 8 F. Supp. 91 (1) (S.D.N.Y. 1934.) ; Grievance Committee of Hartford County Bar v. Broder, 112 Conn. 263, 152 A. 292, 294 (4) (1930).
16. State ex ret. Ricco v. Biggs, 198 Or. 413, 255 P. 2d 1055, 1061 (7) (1953).
17. Evans v. State, 70 Ga. App. 500, 501(3) (1944). 18. Curry v. State, 17 Ga. App. 312 (1) (1915). 19. Clinkscales v. State', 104 Ga. App. 723 (4) (1961) 165, cert. den,
369 US 888, 8 L.Ed 2d 288, 82 S. Ct. 1162 (1961). 20. Groves v. State, 175 Ga. 37, 42 (3) (1932).

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May 15, 1963
OPINION TO THE GOVERNOR
You have requested that I interpret and construe the Act reorganizing the State Highway Board, approved January 25, 1963, (Georgia Laws 1963, p. 3), with respect to the power and authority conferred upon the State Highway Board and upon the Director of the State Highway Department by the various provisions of the Act. Your request specifically refers to the matters of employment of personnel
and the custody, control and supervision of the expenditure of the State Highway funds.
The subject Act amends the Act creating the offices of State Highway Board, Chairman of the State Highway Board, and Treasurer of the State Highway Department, approved February 2, 1950 (Georgia Laws 1950, p. 62), as amended, by striking Section 4 thereof, as amended, and substituting a new section. So far as here material, the substituted section provides for a State Highway Board composed of one member to be chosen from each Congressional District, with a Chairman and Vice Chairman to be elected by the Board, from their own number, to serve at the pleasure of the Board.
The Board "shall meet in regular session one day in each month, and at such other special meetings as may be called by the Director of the State Highway Department, or a majority of the members of the Board from time to time."
In Paragraph (a) of the new section it is provided that the Board shall "be charged with the general control and supervision of the State Highway System of Roads and Bridges, subject, however, to such delegation thereof as may by this Act or any other law heretofore existing be given to and vested in the Director of the State Highway Department." Paragraph (c) thereof provides that members "shall carefully study and visit each county within their respective districts to determine the needs for the construction of new roads and streets and the maintenance requirements for those existing facilities."
The Act does not contain any express enumeration of the duties of the Chairman of the State Highway Board.
The Act does not contain any requirements that any member or the Chairman give any bond.
In Paragraph (e) of the new section there is created the office of Director of the State Highway Department, who shall be a fulltime official of the State, and "who shall be the chief Administrative Officer of the State Highway Department, and who shall possess and exercise all power and authority of the State Highway Board when it is not in regular or called sessions, with full authority to execute contracts and all other undertakings." The Director is required to qualify by giving bond to discharge faithfully the duties of his office and to account for all money and property coming into his hands.

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In addition, the Act amends Georgia Code Ann. 95-1503, so that said section provides :
"The State Highway Department shall consist of the State Highway Board, the Director of the State Highway Department, and such subordinate employees including the Chief Eng-ineer and other assistants as may be deemed necessary by the Director."
From the foregoing, I conclude that the General Assembly intended that the State Highway Board have the power and authority to formulate broad highway policy. I conclude, further, that the Director of the State Highway Department is intended to have power and authority over the operations of the State Highway Department. While the analogy may not be perfect, I believe the respective areas of responsibility of the State Highway Board and its Chairman, and the Director of the State Highway Department, comparable to those of the Board of Directors and Chairman of the Board of Directors, and the President, of a private corporation.
Passing to the matters to which you make particular reference, namely employment of personnel and custody, control and supervision of the expenditure of the State Highway funds, I am of the' opinion that the power and responsibility for both activities is lodged in the Director of the State Highway Department.
As to employment of personnel, I base my opinion upon the language in Code 95-1503, as amended by the subject Act, which is quoted above, and upon what I have heretofore said about the respective responsibilities of the Board and the Director.
I am aware that the subject Act does not expressly repeal Section 13 of the Act approved February 2, 1950 (Georgia Laws 1950, pp. 62, 71; Georgia Code Ann. 95-1621), which provides that the Chairman of the Stq_te Highway Board, with the approval of a majority of the Board, is authorized to employ personnel. It is my opinion that the subject Act repeals Section 13 by necessary implication, both from the provision amending 95-1503 and the provisions making the Director the Chief Administrative Officer of the State Highway Department. It is to me manifest that the intent of the subject Act is that the Chairman of the State Highway Board shall not have administrative or operational powers or responsibilities.
With respect to custody; control and supervision of the expenditure of the State Highway Funds, I desire to point out that the subject Act expressly repeals Section 6 of the Act approved February 2, 1950, as amended, which enumerates the powers and duties of the State Highway Board, including "the general duties, management and control of ... the State Highway Funds ... ," and confers substantially the same powers and duties, except those pertaining to funds, upon the State Highway Board as constituted by the subject Act. The Act fails to require any bond from any member of the State Highway Board, while a bond is required of the Director, conditioned to account for "all money and property coming into his hands." To me, the legislative intent is clear, that the Director of the State Highway Department shall have custody, control and supervision of the ex-

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penditures of all State Highway Funds. In summary, I conclude from reading the Act of 1963 as a whole, that it was the intention of the General Assembly to vest in the new Director of the State Highway Department, all the executive and administrative duties which theretofore were vested in and exercised by the Chairman of the State Highway Board. Under prior law, the Chairman was a full-time official whose duties were not limited to policy matters. The Act of 1963. evinces an intent to alter this organizational arrangement substantially. The Board is now solely a policy-making body, presided over by the Chairman. On the other hand, the details of day-to-day administration, such as the employment and discharge of personnel, the control of funds, advertisement of bids, and all other similar duties. administrative in nature, are to be exercised by the Director.
May 16, 1963:
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
I am pleased to answer your request for an opinion regarding the per diem allowance for members of the State Welfare Advisory Board.
You state in your letter that the Acts of 1960 establishing a State Welfare Advisory Board (Georgia Laws 1960, pp. 85-86) provides in part as follows :
"Members of the Board shall receive a per diem of twenty (20) dollars for their attendance at Board meetings plus their actual traveling and subsistence expenses incurred in the performance of their official duties in attending said Board meetings."
You request my opinion as to whether the above quoted section would permit the $20.00 per diem allowance for the day of travel prior to the day or days of the meeting of the Board and the $20.00 per diem for the day of travel immediately following the Board meet~ ing.
You also ask the following in your letter:
"In the event that this is permissible, would a fraction of a day in travel prior to and subsequent to the meeting constitute a full day and thereby entitle the Board member to a full twenty (20) dollars per diem?"
The Acts of 1960 (Georgia Laws 1960, pp. 85-87) provide only that members of the State Welfare Advisory Board shall receive a per diem of $20.00 per day for each day of attendance at Board meetings, plus actual travel and subsistence incurred in traveling to, and while attending, Board meetings. There is no reference or provision made in the Act for allowing each member, in addition to travel and subsistence expenses, a per diem of $20.00 for each day of travel before or after a Board meeting.

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The Act to which you have reference has not been the subject of review by any appellate courts since its enactment, and I do not find any changes in said law with reference to procedure for administering same. It appears, therefore, that the questions you have propounded would be a matter of interpretation of the law and I do not have any decisions to follow or any yardstick to apply, except whatever general law may be applicable.
In this connection, I call your attention to Georgia Code Ann. 32-407, which provides specifically that members of the State Board of Education shall be paid a per diem of $20.00 for each day in attendance at Board meetings, "... or while traveling as a member of a committee of said Board which has been authorized by action of the Board plus actual travel expenses."
Thus, it is clear that the members of the State Board of Education are allowed a per diem of $20.00 for each day of travel to an authorized meeting, and it is equally clear that the members of the Welfare Advisory Board are not allowed a per diem for a day of travel before and after each meeting. It is not the intent of the 1960 Act to pay to members of the Welfare Advisory Board any funds other than the per diem for each day the meeting is in session plus actual subsistence and expenses. Under the only applicable law, as stated herein, any per diem actually allowed the members of the Welfare Advisory Board, other than for actual days in attendance would not be authorized until the Act of 1960 is amended to provide for a per diem for each day of travel or a fraction thereof.
May 16, 1963
OPINION TO THE SECRETARY OF STATE
Thank you for your letter, requesting my official opmwn as to whether a motor common carrier, certificated and regulated by the Georgia Public Service Commission under Chapter 68-6 of the Georgia Code Ann. and by the Interstate Commerce Commission under Part II of the Interstate Commerce Act (49 USCA, Ch 8), is a "public utility" within the meaning of 5 (d) of the Georgia Securities Act of 1957 (Georgia Laws 1957, pp. 134, 149; Georgia Code Ann. 97-106).
Section 5(d) of the Securities Act exempts, from the registration requirements of the Act, "Securities issued or guaranteed either as to principal, interest or dividend by a railroad or public utility if the issuance of its securities or the fixing of its rates and charges or the keeping of its books and accounts are regulated by any public authority of the United States, or of any State ... thereof...."
Your inquiry divides into two subsidiary questions concerning whether such a motor common carrier is a public utility and, if so, whether the modifying regulatory conditions imposed by 5(d) exist.

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A public utility is generally defined as a business organization which regularly supplies the public with some commodity or services, such as electricity, gas, water, transportation or telephone or telegraph service. The distinguishing characteristic of a public utility is the devotion of private property by the owner or operator to such a use that the public generally, or that part of the public which has been served and has accepted the service, has the right to demand that the use or service, as long as it is continued, shall be conducted with reasonable efficiency and under proper charges. 73 C.J.S. Public Utilities 1; 43 AM JUR Public Utilities and Services 2; Black Law Dictionary 1395 (4th ed., 1951).
Whether the operator of a given business is a public utility depends on whether or not the commodity or service rendered by it is~ of a public character and of public consequences and concern. The test is, therefore, whether or not such person holds himself out, expressly or impliedly, as engaged in the business of supplying his commodity or service to the public, as a class, or to any limited portion of it, as contradistinguished from holding himself out as serving or ready t(), serve only particular individuals. 73 C.J.S. Public Utilities 2.
Does the motor common carrier you refer to fall within the public utility definition?
Part II of the Interstate Commerce Act defines a motor common carrier as "any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes ...."1
Georgia Code Ann. Chapter 68-6 defines a motor common carrier, as "every person owning, controlling, operating, or managing any motor-propelled vehicle . . . used in the transporting of persons and/ or property ... for hire on the public highways of this State as. a common carrier."2 The Chapter does not define the term "common carrier," however, such term is defined by Code 18-101 as a carrier that "undertakes to carry, and holds himself out as ready to receive for carriage, goods for hire, which he is accustomed to, carry, for all people indifferently as long as he has room."3 This
1. 49 USCA 303 (14). An immaterial exception is omitted from the definition.
2. Georgia Code Ann. 68-601 (e). Georgia Code Ann. 68-602 contains immaterial exceptions to this definition.
3. See also: Georgia Public Service Commission v. Taylor, 172 Ga. 100, 103(4) (1931); Georgia Public Services Commission v. Saye & Davis Transfer Company, 170 Ga. 873, 877 (1930) ; Ocean Steamship Company of Savannah v. Savannah Locomotive Works and Supply Co., 131 Ga. 831 (1, 5), 833 (1), 836 (1909) ; Central' of Georgia Railway Co. v. Lip,pman, 110 Ga. 665, 672 (1900); Fish v. Chapman & Ross, 2 Ga. 349(2), 352(2) (1847); Bloomberg-Michael Furniture Co. v. Urquhart, 38 Ga. App. 304, 308, (1928) ; Georgia Code Ann. 18-202.

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common carrier definition was derived from Mcintyre v. Harrison;' which involved the interpretation of the Georgia Motor Carrier Act of 1929.5
The statutory definitions are in accord with the generally accepted definition of a common carrier as one who holds himself outs as willing to serve the public indiscriminately to the limit of his capacity.~> Obviously, a common carrier is engaged in a business vested with a public interest, is under a duty to serve the public and, hence, is a public utility.7
Having determined that the motor common carrier you refer to is a public utility, we must now consider whether its security issues, rates or bookkeeping is regulated as required by 5 (d).
The Georgia Public Service Commission exercises broad and comprehensive powers over motor common carriers certificated and regulated under Chapter 68-6, including the powers to regulate the issuance of their securities,8 to fix their rates and charges, 9 and to
prescribe the manner of keeping their books.1 Furthermore, the In-
terstate Commerce Commission exercises analogous powers over motor common carriers certificated and regulated under Part II of the Interstate Commerce Act, including also the powers to regulate their security issues, 11 rates,12 and bookkeeping.13
In view of these authorities, it is my opinion that securities issued by a motor common carrier, certificated and regulated by the Georgia Public Service Commission under Code Chapter 68-6 and by the Interstate Commerce Commission under Part II of the Interstate Commerce Act, are exempt from the registration requirements of the Georgia Securities Act of 1957 by virtue of 5(d) of the Act.
May 17, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your inquiry as to whether money paid to a lender as mortgage credits against a long term note secured by
4. 172 Ga. 65, 66(5), 82(5), (1931). 5. Georgia Laws 1929, p. 293. 6. 60 C.J.S. Motor Vehicles 46; 13 C.J.S. Carriers 3; 9 AM JUR
Carriers 4. 7. Terminal Taxicab Company v. Kutz, 241 U.S. 252, 254, 60 L. ed.
984, 986, 36 S. Ct. 583 (1916). 8. Georgia Code Ann. 93-414; Ops. Att'y Gen. 49 (1939-41). 9. Georgia Code Ann. 68-613 and 68-614. 10. Georgia Code Ann. 68-624 and 68-625. 11. 49 USCA 314. 12. 49 USCA 316. 13. 49 USCA 320.

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real estate upon which a recording tax has been paid (to be used by the lender to pay taxes and insurance premiums when due on the property securing such note) is subject to intangible property tax.
The transaction with which you are concerned is, as I understand it, a typical escrow account in which a property owner makes monthly contributions to the account which is maintained by the lender as an escrow agent for the home owner. There may of course be other variations, but as I understand it, this is the transaction in its classic sense.
Georgia Code Ann. 92-161 provides in subsection (a) that a property tax is levied annually as of the first day of January of each year at the rate of 10 on each $1,000 of the fair market value of all personal property classified for taxation as intangible property. See Georgia Code Ann. 92-116.
I have examined the provisions of the Intangible Tax Act and the constitutional authority set out in Georgia Code Ann. 2-5404 and I am unable to find any exemption under the circumstances outlined in your request. I would like to point out further the last paragraph of the constitutional provisions cited which states that all laws exempting property from taxation other than the property enumerated in that section shall be void.
May 21, 1963
PUBLIC WELFARE
You inquire as to the possibility of requiring reimbursement from the estate of one of the children of a deceased recipient of welfare benefits.
Your attention is called to the provisions of Georgia Code Ann. 99-626, which reads in part as follows:
"If any recipient of old age assistance has any child or children, who, in accordance with income and resources tables established by the State Department of Public Welfare, are able to support him but who fail to provide such support, the amount granted as assistance to the recipient shall be recoverable from such child or children in a civil action provided that judgment in the trial court is rendered during the lifetime of the recipient . . ."
It is clear from the above Code section that not only must civil action be filed but also judgment rendered during the lifetime of the recipient in order for this law to be applicable.
You did not so state, but I gather from your letter that the recipient is deceased and that no action was taken during her lifetime. I can find no other provision of law which would allow a claim to be filed by the State or anyone else in situations to which you have reference.

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May 22, 1963
OPINION TO THE GOVERNOR
This will acknowledge receipt of your request for my opinion relative to the payment from funds of the Executive Department of expenses incurred by an appointee of the Governor as a member of the Governor's Committee on Interstate Cooperation. That appointee is a member of the General Assembly.
Georgia Laws 1959, page 34, is known as the "Honesty in Government Law," and is found in Georgia Code Ann. as Chapter 26-50. Section 7, insofar as applicable, provides:
"it shall be unlawful for (a) 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, or in the judicial branch of government; .... Any person who knowingly disburses or receives any compensation or money in violation of this section shall be guilty of a misdemeanor...."
Section 26 defines "department" and "agency" as follows:
"As used in this Act, (a) the term 'agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the State of Georgia, other than the General Assembly and the judiciary; ..."
From the above, I am of the opinion that it would not be in order for the Executive Department to reimburse the appointee for his expenses incurred as a member of the Governor's Committee on Interstate Cooperation.
May 22, 1963
VOTER REGISTRATION
Thank you for your recent letter referring to legislation adopted at the last session of the General Assembly authorizing the establishment of additional voter registration places, and inquiring as to whether such establishments are limited to one for each militia district.
Act No. 36, approved March 11, 1963, amended 10 of the Voters' Registration Act (Ga. Laws 1958, pp. 269, 276; Georgia Code Ann. 34-110) to read as follows:
"Section 10. In those counties where the registrars have an office separate from the office of the tax collector or tax commissioner, the registrars shall keep the completed registration cards in such office which shall be in the courthouse or other publicly owned, or publicly rented, or publicly leased

126
building, If no such office exists, the registrars shall keep the completed registration cards in the office of the tax collector or the tax commissioner. For the purpose of taking applications for registration and for the purpose of registering voters, such number of registrars or deputy registrars as shall be designated by the chief registrar shall be stationed at the office where the completed registration cards are kept at such times as said office is open during regular office hours. The chief registrar or the governing authority in any county, in addition to the office referred to hereinbefore, may designate other places in the county to be used for the purpose of receiving applications for registration and for the registration of voters, but there shall not be more than one such place in each militia district in the county. Blank registration cards shall be kept in the office referred to hereinbefore and may be kept in such other places as shall be designated as places for registration as provided for hereinbefore." (emphasis supplied)
Obviously, Act No. 36 limits the establishment of additional voter registration places to no more than one for each militia district.
However, this limitation is abolished sub silentio in counties having a population in excess of 100,000, by Act No. 51, approved March 13, 1963, which creates a new lOA to the Voters' Registration Act to read as follows :
"Section lOA. In all counties of this State having a population of more than 100,000, according to the United States Census of 1960 or any such future decennial census, the chief registrar shall designate, not later than six months prior to the closing date for registration, other places in the county which shall be used for the purpose of receiving applications for registration and for the registering of voters. The chief registrar :shall authorize one or more registrars or one or more deputies, or any combination thereof, to act as a board of registrars for the purpose of taking applications for registration, examining applicants, and registering persons to vote. All of this may be accomplished at the time of application for registration. While so acting, such registrar or registrars or deputy or deputies, or any combination thereof, shall have all the rights and powers as are applicable to the board of registrars as provided in this Act. Blank registration cards shall be kept in the places designated for registration and completed registration cards shall be kept in the main office of the registrars."
The abolishment of the limitation on the number of voter registration places which may be established in densely populated counties is reasonable because such counties clearly require more extensive voter registration facilities than lesser populated counties.

12T

May 23, 1963

OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA

I have reviewed the file in connection with the appeal to the Board

of Regents of Dr. C_________,, Professor at Savannah the decision of the President of the College not to

State renew

CDorl.lecge__,___f_r__o__m's

contract after it expires on June 15, 1963.

Counsel for Dr. c__________, insisted at the hearing that Dr. C----------
had tenure and was entitled to ninety days' notice, and notice of cause

for dismissal or refusal to renew his employment contract.

You have asked that two questions be considered in this opinion:

1. Did Dr. C____ ----- have tenure?
2. What is the legal effect of failure to give Dr. c__________, ninety
days' notice that his contract would not be renewed?

(1) Tenure. The Faculty Handbook of Savannah State College, at page 19, states:

"Tenure: Permanent, beginning with appointment subsequent to the two-year probationary period."

and at page 21 :

"A faculty member with permanent tenure or any member of the faculty prior to the expiration of the term of his appointment shall not be recommended for dismissal, except for grave causes such as serious infraction of law or incompetence, without having been presented a written statement of the charges along with relevant evidence in support of the charges. In all cases the accused is entitled to a hearing before a faculty committee, opportunity to examine charges prior to hearings, and an opportunity to select an advisor or counsel on his behalf and to be heard in his defense by those who pass judgment on his case."

The Faculty Handbook then provides for the President's recommendation to the Board of Regents and a hearing upon request before the full Board, and lhat the action of the Board is final.

The by-laws of the Board of Regents provide as follows:

"Tenure of professors and assistant professors shall be permanent. When a faculty member's first connection with an institution is in the capacity of a full or an associate professor, he shall serve on a probationary basis for a period of two years; his tenure shall be permanent after that time."
Dr. c__________, had not served the complete probationary period of
two years, nor had his contract been renewed for the third year; therefore, he did not have tenure, and it was not necessary to specify cause when notifying him of intention not to renew his contract at the expiration of the contract period of June 15, 1963.

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(2) Legal effect of failure to give ninety days notice of intention not to renew contract of employment.
The professor's contract was to expire on June 15. On March 30, 1963, the president of the college wrote him that the decision had been made not to renew his contract. The president's letter was received by Dr. C_________, on April 2, 1963, less than ninety days prior to the expiration date of the contract.
The Faculty Handbook of Savannah State College provides, on page 20:
"The term of employment for regular faculty members is stated in a written contract designating a twelve month period or an academic year of three quarters."
On page 21 of the Handbook is stated:
"A faculty member or administrative officer shall be notified at least ninety days before the end of his appointment or the academic year by the President of his intention not to renew his appointment.''
The by-laws of the Board of Regents provide:
"Faculty members and officers of the administration shall be given three months' notice by the President of his intention not to renew their employment contracts. . . .''
No penalty is provided in either of the above statements for failure to give the ninety-day notice. It is not provided that the contract is automatically renewed for failure to give such notice. Therefore, it must be construed that the provision of ninety-day notice, is not a legal binding requirement as a condition precedent to termination of employment services, but at most is a warning or courtesy notice voluntarily granted by the Board of Regents.
In substantiation of this construction is the provision in the bylaws of the Board of Regents and in the Faculty Handbook of the Savannah State College that the Board shall elect all faculty members and other employees in the University System, and every appointment to and promotion within the Faculty shall be approved by the Board of Regents on recommendation of the President. The Board of Regents could reverse the President's recommendation to renew a contract of employment of a faculty member; and vice versa, the Board of Regents could renew a contract of employment of a faculty member even though the President had recommended that a contract not be renewed.
In the case of Graham v. Hubert, 58 Ga. App. 19 (1938), the Court of Appeals construed a rule and regulation promulgated by the Regents of the University System of Georgia which provided in part that:
"should the Regents of the University System of Georgia and/or any institution in the System, desire to dispense with your services, that you will be given ninety days' written notice.''

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The Court of Appeals held that the proper construction to be given the notice passed by the Board of Regents is:

"should the Regents of the University System of Georgia or any institution of said System desire to dispense with the services of any employee during the term for which he was elected, the Regents or institution should give ninety days' written notice to such employee. But such notice would not be necessary to dispense with the services of an employee at the end of the term for which he was elected."

In my opinion, if the Court of Appeals decided that the notice required by the rules and regulations in effect at the time the Graham case was decided was not necessary to dispense with the services of an employee at the end of the term for which he was elected, it would certainly seem that the stipulation of the bylaws and Faculty Handbook that faculty members be given three months' notice by the President of the institution of his intention not to renew the employees' contracts would not be necessary in order to dispense with the services of an employee at the end of the term for which he was elected.

This is particularly true in the case of Dr. C --------- under the present provisions of the Faculty Handbook to the effect that "every appointment to and promotion within the Faculty shall be approved by the Board of Regents on recommendation of the Presi-
dent ...,"and the requirement of the bylaws of the Board of Regents to the effect that "the Board shall elect the faculty members or other employees at the March monthly meeting...." (Bylaws, Article VI.)

In addition, there is set out on page 329 of the minutes of the Board of Regents for 1955-56 the form of employment contract to be used for faculty members, and, among other things, the form states:

"If your employment is on a three-quarter basis and if your services should be needed during the fourth quarter, a separate contract will be made with you covering your services for the fourth quarter.

"This appointment is made subject to the statutes of the institution by which you are employed and to the bylaws and
regulations of the Board of Regents. . . ."

In my opinion, it is conclusive from all of the above that the failure to give the three months' notice of the President's intention not to renew the employment contract did not and could not automatically renew the employment contract for any period of time, because the Board of Regents has to elect and make appointments of all faculty members and other employees in accordance with the bylaws and in accordance with the resolutions of the Board prescribing the form of appointment and contract of employment.

in

It is my official opinion that, connection with the appeal of

Dafrt.ecr __c_o___n__s__i.dearnadtiothneolfawall

the facts applicable

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Regents would be legal grounds, and

justified in denying that consideration of

Dr. Dr.

130
c__________'s request for relief based upon any other grounds is a matter
which addresses itself to the Board's determination.
May 24, 1963
<OPINION TO THE GOVERNOR
In your letter you asked that I advise you whether the oath pre~ scribed by law for persons serving upon Boards, Bureaus and Com~ missions of the State of Georgia would, when construed in conjunction with the statutes establishing the United States Study Commission, preclude the Honorable James W. Woodruff, Jr., who is Chairman of the United States Study Commission, from eligibility to serve as a member of the Constitution Revision Commission which is to draft a proposed new Constitution for the State of Georgia.
The oath to which you make reference provides in pertinent part "that I am not the holder of any office of trust under the government of the United States."
The U. S. Study Commission was created by Public Law 85-850 (72 Stat. 1090) and was created to formulate a comprehensive and co-ordinated plan for flood control, navigation, hydroelectric power and industrial development, soil surveys, recreational facilities and various other beneficial and useful purposes within the general area of the southeast. The Commission is composed of eleven members appointed by the President; however, we are only concerned with the chairmanship as that is the position presently held by Mr. Woodruff. In 3 (b) (1) the Chairman is prohibited from holding any other position as an officer or employee of the United States and is authorized compensation which is not set forth as a definite amount, but is limited so as not to exceed $12,000.00 even when combined with any retired pay or annuity which might be received from the Federal government.
A recipient of compensation from the Federal government would not necessarily be an officer of trust; however, under 5 listing the duties of the Chairman, we find:
"Responsibility shall be vested in the Chairman for (1) the appointment and supervision of personnel employed under the Commission, (2) the distribution of business among such personnel, and (3) the use and expenditure of funds: ..." (emphasis added)
I am of the opinion that because of the language emphasized above, the duties of the Chairman come within the definition of "office of trust" and for that reason Mr. Woodruff is precluded from serving in the capacity as Chairman of the U. S. Study Commission and also as a member of the Georgia Constitution Revision Commission.

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May 24, 1963
OPINION TO THE INSURANCE DEPARTMENT
You requested an official opinion as to whether or not a lender under the Georgia Industrial Loan Act may lawfully insist that the borrower furnish and pay the premium for a single interest insurance policy.
As you pointed out in your letter, single interest insurance is a type of insurance which many licensed loan companies require which covers and protects their interest in the borrower's pledged property, but in which the borrower himself has no specific interest.
Charges which may be made in addition to legal interest as specified in Chapter 25-3 of the Georgia Code Annotated are specific. Among the permissible charges is that of required insurance. As a general rule insurance requirements of a general nature have a twofold benefit. The borrower is protected against loss of the personal property in addition to having the amount of the loan repaid in the event of such loss. The lender is protected, in that even though the security given for the loan is lost, money is available for the repayment of the loan.
Single interest insurance does not have all of these features. The borrower is protected, but only to the extent of the unpaid balance owing on his loan at the time of loss, and not for any equity in the property which is lost. The title of subparagraph (c), Georgia Code Ann. 25-315, is as follows: "A licensee may charge and collect from the borrower premiums actually paid or to be paid for insurance obtained for the borrower." By the use of this language the Legislature has made it clear that the insurance must be for borrower's benefit. Borrower's insurance would, therefore, cover not only the amount owing on the loan, but also any equity the borrower might have in the property insured.
Therefore, it is my opinion that single interest insurance is not insurance for the borrower and the premiums paid for it would not. be within the exclusion as to interest as set forth in subparagraph (c). Further, as you have pointed out, 25-316 specifies that no licensee shall charge, contract for, or receive any other or further amount in connection with any loans authorized by that Chapter. The premium charged for a single interest insurance policy which inures to the benefit of the lender only would be unauthorized.
May 24, 1963
CRIMINAl"' APPEARANCE BONDS
You ask "Please advise if you know of any statute, rule or regulation barring a corporation from signing criminal appearance bonds." I am not familiar with any law that would prohibit a corporation from

132
signing a criminal appearance bond, provided the charter of the corporation gives it such authorization.
Your next question is "If not, what prevents a person or group from incorporating at capitalization of $200.00 and then signing bail bonds at lawful rate of 10% of first $500.00 of principal of the bond and 5% on balance, except the approving officer requiring an affidavit to justify the acceptance of the bondsmen as surety on the bond?"
I have been unable to find any law that would prevent a group of persons from incorporating at capitalization of $200.00 and signing bonds at the legal rate allowed by law, provided, however, that the charter authorized such corporations to sign bonds.
However, it is my opinion that it would be the duty of the officer receiving the bond to investigate and ascertain the solvency or responsibility of the bondsman.
May 27, 1963
PUBLIC SAFETY
You ask what regulations are currently in effect relative to the use of life preservers.
The current regulation is found in section 1, paragraph (g) of the Regulations relative to Boating Safety under the Motorboat Numbering Act (Georgia Laws, 1960, p. 235). It reads:
"(g) The operator of each motorboat and the operator of each watercraft on the waters of this State (as defined in Section 2 [3] of the Georgia Motorboat Numbering Act, 1960 Georgia Laws, page 235), shall have aboard for each person, a life preserver, buoyant vest, buoyant cushion or ring buoy all such equipment to be United States Coast Guard approved) in good and serviceable condition."
It appears that some question might have arisen as to the procedure by which life preservers are approved by the United States Coast Guard. It is my understanding that approved life preservers must bear two markings: one by the manufacturer, and the other by the inspector, to indicate inspection and passage of the life preserver. Buoyant cushions, ring life buoys and buoyant vests only require the one marking.
As to the requirement for the number of life preservers, etc., the Regulation requires one for each person. It is normal for a skier to be counted as a passenger in the boat in that the use of a life preserver could be imminent and if for any reason the skier is brought aboard, then he would be computed in determining the requisite number of life preservers, etc. While this is a technicality, and he is not technically on board the boat, it would appear the better practice to have a preserver aboard for such pel'son.

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May 27, 1963
MOTOR VEHICLES
I have your letter inquiring if there are any State laws prohibiting or regulating the establishing of a race track in Fannin County for drag racing.
It is assumed by your letter that "drag racing" means racing between automobiles properly supervised as compared to other types of racing.
There is no State law which regulates or prohibits drag racing in Fannin County. However it is very possible that there are local laws which regulate this sort of activity.
Georgia Code Ann. 68-1626 provides in part:
"(e) It shall be unlawful for any person except an officer in the performance of his duty, to wilfully operate a motor vehicle, motorcycle, motor-driven cycle or any other vehicle upon the public highways, roads or streets of this State in such a manner so as to race or otherwise engage in a contest of speed with any other motor vehicle. . . ."
I can see no objection from the State regarding such an activity since this drag racing will be conducted on private property with proper supervision and regulation. There may, however, be objection from adjoining property owners.
May 27, 1963
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter in which you asked if a lawyer empowered to execue court bonds for a surety company as an attorney-in-fact where the servicing law firm will not be entitled to share in the surety agent's commission is required by the Insurance Code to qualify as an insurance agent.
An "insurance agent" is defined as follows in Georgia Code Ann. 56-80lb, Paragraph 1:
"(1) 'Agent' shall mean an individual, appointed or employed by an insurer who solicits insurance or procures applications therefore, or who in any wise, directly or indirectly, makes or causes to be made any contract of insurance for or on account of an insurer, or who as representative of an insurer receives or receipts for money for transmission to the insurer for a contract of insurance, anything in the application or contract to the contrary notwithstanding. The term 'agent' as used in this Chapter shall not include a person acting for or as a collection agency, or an attorney at law admitted to practice in

134
this State, when handling the collection of one or more premiums as a collection matter...."
A "limited surety agent" is also defined in the same section as follows:
" (4) 'Limited surety agent' shall mean an individual appointed by an insurer that is engaged in fidelity insurance business, by power of attorney, to execute and/or countersign only release of attachment bonds and bail bonds in connection with judicial proceedings."
It is my opinion that all other types of court bonds are included in this definition and that the individual selected in the law firm as attorney-in-fact would be a "limited agent." For certain limited purposes attorneys are excepted from the definition of agent, but the service contemplated by the request is not one of these exceptions.
In your letter you stated that the contemplated business originating from the selected law firm would be thereafter handled by licensed agents for collection purposes and the law firm would not be entitled to share in the surety agents' commissions. It is apparent from this that the service rendered would be simply one of convenience and mutually beneficial to all concerned-the client, the attorney, and the surety company-even though the type of service rendered is not that customarily performed by a practicing attorney in this State.
Inasmuch as attorneys are exempted from licensing requirements by specific mention in the Insurance Code and action as a limited surety agent is not one of the exceptions, it is my opinion that Georgia Code Ann. 56-811 (b), subparagraph (3), would be applicable. It states:
"(3) The Commissioner may issue a: limited surety agent's license to an individual qualifying therefor by taking and passing an examination limited to such subjects as relate to limited surety agents."
I believe that such an arrangement as contemplated would require the issuance of a license by the Insurance Commissioner, but that he would have broad discretionary powers as to the requirements of the examination to be taken.
May 29, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your request for an opinion concerning the application of homestead exemptions when the land on which a residence is situated lies in two counties.
Unofficial opinions on this subject may be found in Ops. Att'y Gen. 342 (1958-59), and in the 1954-56 volume, page 743.

135
The Court of Appeals case of Jones v. Johnson, 80 Ga. App. 340 (1949), presented the concept of the wholeness or entirety of a homestead. The case held that a farm owner residing in a dwelling thereon is entitled to a homestead exemption on the entire tract, the court refusing to make any distinction in the use of the land as a farm that would limit or define the boundary of a homestead.
This decision, although not precisely in point regarding the present question, does indicate that the homestead should be considered as a whole, and this is consistent with the previous opinions advising that neither county is to be the exclusive or sole recipient of an application for a homestead exemption.
In my opinion the earlier unofficial opinions are correct and should be followed. Thus, if the land lies in two counties the applicant would have a right to file an application in each of the counties in proportion to the acreage or value located therein and claim as exempt the property located in each county so long as the total exemption does not exceed $2,000.00.
May 30, 1963
OPINION TO THE BOARD OF PROBATION
This office has received your letter in which you request my opinion as to the legality of entering into a contract of employment with an individual to become an Area Probation Supervisor at a salary of $8400.00 per year.
The Statewide Probation Act was pas!'!ed by the 1956 Legislature, Georgia Laws 1956, page 27 (Georgia Code Ann. 27-2702 through 27-2721), and as originally enacted had no provision for the post of Area Probation Supervisor. However, the Act was amended in 1958 (Georgia Laws 1958, page 15) to provide for the office of Assistant Director of Probation and such Field Supervisors as might be required by the State Board of Probation. "The salaries of said Assistant Director of Probation and Field Supervisors shall be not less than $3600.00 annually nor more than $7200.00 annually." Georgia Code Ann. 27-2722.
Since the Legislature has seen fit to fix the compensation legally allowed for the position of Field Supervisor, payment in excess of the maximum amount provided would be unauthorized. The Statewide Probation Act provided for a liberal interpretation, but this would not allow me to interpret the statute so that the maximum salary permitted for this position could exceed the stated maximum limitation. This limitation has not been increased since the position was created in 1958.

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June 5, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your request for an official opinion on
"the amount of commission counties with a population of over 75,000 would be entitled to, that is, where the tax commissioner is strictly on a salary basis with all state commissions going into the county treasury."
In the absence of an appropriate resolution by the Board of Commissioners of Roads and Revenue or the Ordinary (in the case of Cobb County) the commission paid into the treasury of each county shall be 10 per cent of all taxes collected in excess of 90 per cent of the total taxes due according to the net tax digest.
If a resolution has been passed in a particular county the commission paid into its treasury would then be 10 per cent of all taxes collected in excess of 80 per cent. Each County Attorney would be the person to advise whether or not his county has passed such a resolution.
The Act of 1951 amending 92-5301 of the Georgia Code Ann. and amending by striking the provisions of 3 of the Act approved January 17, 1938 (Georgia Laws 1937-38, Ex. Sess., p. 297), now codified as 92-5304, clearly ties the two applicable provisos of the statute to the statement of the basic rate.
Although not in point with the' present question, a recent case, Clark v. Kaylor, 107, Ga. App. 503 (1963), shows the relationship of the various special county laws as they affect a preceding general law on the subject of commissions and fees of county tax officials. That case cited Laurens County v. Keen, 214 Ga. 32, 102 S.E. 2d 697 (1958), as controlling in holding
"that a subsequent act of the General Assembly fixing the compensation of a tax commissioner of a particular county takes precedence over any preceding general law applying uniformly to the several counties."
June 12, 1963
OPINION TO THE DEPARTMENT OF INDUSTRY & TRADE
You requested an opinion as to what shall constitute the thirty day period in which to act on all applications for certification required prior to validation of any revenue bond under section 10, subparagraph 2, of the Industrial Development Authorities Law (Georgia Laws 1963, pp. 531, 539).
The requirements of section 10 of this Act are vague as to what shall be included in an application for certification, but the information should be sufficient to allow your Department to determine that

137
such financing is needed, the economical feasibility of the undertaking, and that repayment appears probable. An application that is not sufficient at the time that it is received should be denied until supplementary information can be added.
When the Department receives the additional information on which to determine whether a certificate can be issued or not, the application could then be reconsidered and the thirty days would then commence to run.
June 5, 1963
OPINION TO THE DEPAR1'MENT OF EDUCATION
I am pleased to acknowledge and reply to your question:
"Under Georgja Law, can the Cobb County-Marietta Public Library Board hold title to real property?"
It is my understanding that the Cobb County-Marietta Public Library is supported jointly by Cobb County, the City of Marietta, the Cobb County Board of Education and the City of Marietta Board of Education; that it is recognized under the General Library Laws, with the great majority of its support coming from local tax revenues.
In my opinion, the Cobb County-Marietta Public Library Board does have the power or authority to hold title to real property.
There are no statutes prohibiting a board of library trustees from purchasing or accepting real property, and further Georgia Code Ann. 32-2703, specifically empowers such a board of trustees to accept donations of money and land; therefore, it must necessarily follow that such a board must legally hold title to land if they are to accept it.
Georgia Code Ann. 32-2708, provides that a library board, as established under 32-2707, provides in part:
"Said board may establish branches and stations wherever deemed advisable. . . ."
This provision indicates that the board must have the authority to contract for and hold title to real estate in the absence of prohibited statutes.
Section 32-2708, also contains the following provision:
"Said board shall have power to contract within the limits of the funds available to them by appropriations, taxation, bequest, donation, or from other sources." [emphasis added]
There is a strong implication and indirect authority for the board to hold title to real property, there being no statutes to the contrary.

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June 6, 1963
OPINION TO THE INSURANCE DEPARTMENT
In answer to your letter in which you request an official opinion as to the application of the tax abatement section in conjunction with the retaliatory statute of the Insurance Code, please be advised that it is my opinion that the two Code sections are not incompatible and that it is possible for an insurance company to have both sections applied to its operations within this State.
It is probable that the question has arisen because of the language which concludes Georgia Code Ann. 56-1305, i.e., "(after qualification) then the said premium tax shall be abated or reduced to one-half of 1% upon the gross premium of such company subject to taxation by said section." This language is specific as to what the tax will be and it does not mention expressly the retaliatory provisions of 56-321. Nonetheless, although case law on this question is nonexistent, it is my opinion that the two sections are not mutually exclusive. In other words, a company having met the statutory standards could qualify for the abatement provisions allowed on the gross premium tax. The same company could also be subject to retaliation because of the existing tax structure of its home state.
Thus, a foreign insurer coming within both provisions, i.e., abatement and retaliation, would first have the gross premium tax figured at the applicable rate. To this dollar amount would be added the amount of retaliatory tax, if any, computed against the foreign insurer because of the existing differential between the Georgia aggregate tax and fee structure and that of the foreign state in which the company is based.
June 6, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your request for an official opinion defining the term "domestic wine" as it is used in Georgia Code Ann. 58-901, and whether or not a wine loses its domestic character if it is fortified with brandies imported from without the State of Georgia.
The section in question defines domestic wine and foreign wine as follows:
"Domestic wines are hereby defined and declared to be those wines manufactured wholly within this State and from fruits and berries grown only within the State of Georgia and produced by natural fermentation. . . ." (Georgia Code Ann. 58-901 (a). (Emphasis added.)
"Foreign wines are hereby defined and declared to be wines which are imported in whole or in part in the State of Georgia, or manufactured in the State of Georgia from products

139

imported in whole or in part from without the State of Georgia and produced by natural fermentation.... " (Georgia Code Ann. 58-902 (b) . (Emphasis added.)

The purpose of this Code section is to classify wines for taxation and domestic wine having an alcoholic strength of 14 percent or less by volume is taxed twenty cents per gallon and foreign wine having an alcoholic strength of 14 per cent or less by volume is taxed one dollar per gallon.

Federal regulations permit wine manufacturers to fortify wine

by adding brandy, thereby raising the alcoholic strength above the

percentage produced by natural fermentation. The Georgia Wine Tax

Act recognizes this and taxes wines having an alcoholic strength in

excess of 14 percent at a higher rate. The Act makes specific refer-

ence to fortified foreign wine and fortified domestic wine. [Georgia

2C6odue.

As.nnc..



58-901 3031.

(c) (d)].

See also Georgia Code Ann. 58-1011.

Brandy is an alcoholic beverage and is a spirituous liquor obtained by distillation and not by natural fermentation. The tax imposed on such a product is set forth in 58-1046.

While it might be argued that the fortifying of wine results in a product that is taxed in accordance with 58-1046 (See Gay v. Clements, 214 Ga. 136 (1958)), the legislative history clearly indicates the contrary; and the section imposing the tax on wines is clear. Georgia Laws 1953, page 470.

The General Assembly in 1955 had before it HB 171 which would, in effect, have defined domestic fortified wine as wine manufactured wholly within this State from fruits and berries grown only within this State and produced by natural fermentation, fortified with brandy manufactured in this State. This bill did not pass and never became law. The General Assembly in June of that same year in Extraordinary Session had before it HB 3 which did pass and which is the present law. Georgia Laws 1955, p. 22 (Extra. Sess.).

Brandy is not wine as it is not produced by natural fermentation,
and the addition of brandy to a wine can not change a domestic wine to a foreign wine. To hold otherwise would be to adopt H. B. 171, 1955,
by opinion when such was refused by the General Assembly.

A domestic wine does not, in my opinion, change to a foreign wine because of the addition of a fortifying brandy irrespective of where the brandy was manufactured or distilled.

June 6, 1963
OPINION TO THE STATE HIGHWAY BOARD In your letter you request my opinion on paragraph (c) of 4,
of the Act approved February 2, 1950 (Georgia Laws 1950, p. 62),

140
as amended by substitution in Georgia Laws 1963, page 3, at page 6, with reference to compensation and expenses payable to members of the State Highway Board.
You further state in your letter that a member of the State Highway Board has inquired whether Board members may be furnished telephone credit cards to be used for State Highway Board business.
The 1963 Act specifically repeals 5 of the Act approved February 2, 1950, (Georgia Code Ann. 95-1604), relating to compensation of members of the State Highway Board. I am of the opinion that the 1963 Act repeals by implication so much of Georgia Laws 1953, page 613, as amended, as applies to compensation, salaries, expenses and allowances of members of the State Highway Board.
I am of the opinion that the compensation and expenses to which the members of the State Highway Board are entitled will be such, only, as the 1963 Act provides. For convenience of reference, paragraph (c) is quoted :
"(c) Meetings, compensation. The State Highway Board shall meet in regular session one day in each month, and at such other special meetings as may be called by the Director of the State Highway Department, or a majority of the members of the Board from time to time. The members of the Board shall carefully study and visit each county within their respective districts to determine the needs for the construction of new roads and streets and the maintenance requirements for those existing facilities. The members of the Board shall receive no salary but shall receive the sum of twenty ($20.00) dollars per day for each day of actual attendance at meetings of the Board and for those days actually spent in studying the road needs of the various counties within their districts, not to exceed four days per year for each county within their respective districts, in addition to actual expenses incurred in connection therewith, and actual cost of transportation to and from the place of meeting by the nearest practical route from their homes as well as the mileage expended in visiting said counties, such per diem and expenses to be paid from funds appropriated to the State Highway Department upon presentation of vouchers by members of the Board, approved by the Chairman and signed by the Secretary."
Under the express provisions of this paragraph, members shall receive no salary but shall receive the sum of twenty ($20.00) dollars per day for each day of actual attendance at meetings of the Board and for those days actually spent in studying the road needs of the various counties within their districts, not to exceed four days per year per county. This means that each member is entitled to a per diem of twenty ($20.00) dollars for each day when he is physically present at meetings of the Board, and not to exceed four days per year per county when physically present therein, for studying the road needs of the counties within their districts.

141
As to subsistence and travel expenses, it is my opinion that the Act contemplates payment of actual expenses for subsistence incurred in connection with attendance upon Board meetings, and visits to each county to study road needs, with, of course, the four day limitation on visits to each county during any year. It appears that members are entitled to "actual cost" of transportation to and from the place of meeting by the nearest practical route from their homes, for attendance upon meetings of the State Highway Board, while their visits to the counties in their districts to study road needs are to be on a mileage basis. The mileage allowance provided in Georgia Laws 1962, page 710 of eight cents per mile, would be payable for visits to counties. For traveling by automobile to and from meetings of the State Highway Board, mileage would be payable at the same rate, under the same law.
The foregoing is based upon the principles stated in my opinions of March 17, 1959, relating to per diem and expenses authorized by law for the State Board of Education (Ops. Att'y Gen. 132 (1958-59)), of May 12, 1959, relating to per diem, subsistence, and travel expenses of the Georgia Milk Commission (Id. at 9), and of June 17, 1960, relating to per diem and mileage of the State Forestry Commission (Ops. Att'y Gen. 454 (1960-61)).
Having covered the matters of per diem, travel and subsistence, I come to the question whether Board members may be furnished telephone credit cards to be used for State Highway Board business.
I understand that such credit cards authorize the holder to charge long distance telephone calls to the account of the State Highway Department.
In niy opinion of May 15, 1963, addressed to the Governor, copies of which were furnished each member of the State Highway Board, I set forth the power and authority, duties and responsibilities of the Board and the members thereof. Without repeating what is said there, I will state that in my opinion the duties and responsibilities of the members are such as to require them to make long distance telephone calls regularly.
In 67 C.J.S. Officers 91 at page 329, the rule is stated that:
"An officer is entitled to compensation for expenses incurred by him in the performance of his official duties when, but only to the extent, provided for directly or by necessary implication."
I find no direct provision for reimbursing members of the State Highway Board for the cost of long distance telephone calls; however, I am of the opinion that by necessary implication such expenses are reimbursable. It follows that an arrangement whereby long distance calls are charged directly to the State Highway Department is legal. By the express provisions of Georgia Code Ann. 95-1503, as amended by Georgia Laws 1963, page 3, at page 9, the State Highway Department shall "consist of the State Highway Board - - -." and the Director and subordinate employees. Section 95-1504 of the Annotated Code

142
authorizes the Department to pay the compensation and expenses of ali officials and employees of the Department.
June 6, 1963
TAX EXEMPTIONS
This is in reply to your letter requesting an opinion on whether a taxpayer's homestead exemption may be raised from $1,500 to $2,000 by the Board of Assessors, considering also that Pulaski County has, in line with a revaluation program, raised the valuation of the property to $2,000 and that the taxpayer once applied for and was granted a $1,500 homestead exemption but has not reapplied since the revaluation.
The Board of Assessors may raise the exemption and should do so, as the taxpayer has not waived any part of the full exemption provided in Ga. Const. Art. VII, 1, Par. IV (Georgia Code Ann. 2-5404). An Act passed in 1946 (Georgia Laws, 1946, pp. 12, 14; Georgia Code Ann. 92-219) fully implements the provision of the Constitution, and the Acts of 1952 added the following proviso to 92-220;
"said owner . . . shall not have to apply for the exemption but one time so long as . . ., but such exemption shall automatically be renewed from year to year so long as. . . ."
This question of renewal of an application has been discussed in unofficial opinions on June 24, 1957, and August 19, 1954. See Ops. Att'y Gen. 293 (1957), and 1954-56, page 725, respectively.
June 7, 1963
OPINION TO THE BOARD OF CORRECTIONS
I have received your letter concerning use of prison labor on a bridge being constructed in Wilkinson County, Georgia.
Subparagraph (e) of 4 of the Georgia Laws 1957, page 477, reads as follows:
" (e). The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the Board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of state or local government now or hereafter created by law,

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which are hereby authorized to so contract with the board, for the contruction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor."
From the language of this Act the local county public works camps, upon approval of the Board, would be authorized to contract with the County of Wilkinson for use of prison labor for the construction of these bridges on the public roads in Wilkinson County. The fact that the County has entered into an agreement for certain equipment and skilled labor to operate same from a private concern does not make the use of prison labor on the project illegal.
June 10, 1963
OPINION TO THE BOARD OF CORRECTIONS
This office has received your letter in which you ask if it is mandatory for a prisoner to be credited by the Board of Corrections for statutory and extra good time on a State sentence during the period of the prisoner's incarceration in the Federal penitentiary system for an entirely unrelated criminal offense.
This exact question is novel and has not been answered precisely by the appellate courts of this State. Nonetheless, it is my opinion that Headnote 1 of Balkcom v. Gaulding, 216 Ga. 410 (1960), furnishes a key to the answer. It is as follows:
"1. While Code Ann. 77-320 (Ga. L. 1956, pp. 161, 178), provides that 'The State Board of Corrections shall formulate rules and regulations providing for extra good-time allowances 1n addition to the statutory good time hereafter provided, to be awarded to deserving and exemplary prisoners,' and 'Upon receipt of a prisoner by any prison or county public works camp operated under the jurisdiction of the State Board of Corrections, said Board shall forthwith compute the aggregate of the maximum extra good-time allowances and statutory good-time allowances that said prisoner can possibly earn for the minimum and maximum sentence or sentences imposed thereon' (emphasis supplied), a probationer is not a prisoner within the meaning of this statute, and, therefore, one serving a sentence on probation is not entitled as a matter of law to statutory or extra good-time allowances. Code Ann. 77-309; Code Ann. Ch. 27-27. See Brown vs Akin, 80 Ga. App. 309 (55 S.E.2d 875), and cases there cited."
For purposes of this inquiry emphasis should also be supplied to the words "by any prison or county public works camp operated under the jurisdiction of the State Board of Corrections."
The fundamental public policy underlying Georgia Code Ann. 77-320 is the orderly administration of the penitentiary service of prisoners, which is enhanced by a system of rewards in which the prisoner participates through a reduction of time served. The State

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also benefits through a lessening of ever constant discipline problems. The State receives no benefit by awarding statutory good time to an individual not "in any prison or county public works camp operated under the jurisdiction of the State Board of Corrections." Section 77-320 was passed to benefit both the State and the prisoner. Since the State is not benefitted directly when the prisoner is not under the jurisdiction of the State Board, the application of the provision dealing with statutory good time would be unauthorized.
June 10, 1963
OPINION TO THE GOVERNOR
This is in reply to your letter in which you enclosed a copy of a letter from the Honorable Pope B. Mcintyre, Vice Chairman of the State Constitution Revision Commission, to Honorable P. T. McCutchen, Secretary of the Commission, and in which you requested my opinion on the following two points of law:
1. What is the legal status of amendments to the Constitution of 1945 which have been proposed by the General Assembly and are ready for submission to the people for ratification or rejection at the next general election if the proposed new constitution is ratified by the people in the same general election?
2. Can the General Assembly repeal a proposed constitutional amendment before it is submitted to the people?
The answer to the first question is found in the case of Fulton County v. Lockhart, 202 Ga. 878, 880, 881 (1947). In that decision, the Georgia Supreme Court was deciding the same question presented here and was specifically concerned with a local constitutional amendment which had been proposed by the General Assembly as an amendment to the Constitution of 1877 and was ratified as such an amendment in the same general election in which the Constitution of 1945 was ratified. In deciding this question, the Court held:
"As we construe together the new Constitution of 1945 and the simultaneous local amendment to the Constitution of 1877, the local amendment cannot be preserved as a valid continuing amendment to the Constitution of 1877 ... for the reason that, at the very time it was ratified by the people, the old constitution and all of its amendments, except as otherwise specifically provided, vanished into thin air. There was nothing left to which the amendment, as an amendment, could adhere."
The Court also stated that the breath of life could not be breathed into this local constitutional amendment by treating it as a direct amendment to the Constitution of 1945. The Court's reasoning behind this is based upon the position that the amendment, by its own language and plainly by its terms, sought to amend the Constitution of 1877 and not the Constitution of 1945. The Court further said:

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"Both the local amendment to the Constitution of 1877 and the new Constitution of 1945 were simultaneously submitted to the people, without it being possible to know which, if either, would be ratified by the people. Both were in fact ratified. Had the new constitution failed, the amendment to the old constitution would undoubtedly have become effective as an amendment to the old constitution, and this illustrates the point that, since the new constitution did not fail, but abolished the old constitution, which the amendment sought to alter, the amendment, like the old constitution, must give way to the all inclusive new constitution."
The Court also held:
"It cannot reasonably be said that the local amendment was 'in effect' at the time the new constitution was ratified by the people. Where simultaneous action is taken, neither precedes the other, and neither action is 'in effect' when the other is consummated."
In view of the above decision and in answer to your first question, it is my opinion that proposed amendments to the Constitutions of 1945 would be of no force and effect whatsoever if ratified at the same time a new constitution is ratified.
In answer to your second question, it would appear from dicta in Fulton v. Lockhart, supra, that proposed amendments to the Constitution of 1945 must be submitted to the people for their ratification or rejection although an entirely new constitution is to be submitted at the same time. Following the Court's reasoning, which is of course dicta, if the new constitution should fail to be ratified and the proposed amendments to the Constitution of 1945 should be ratified, then the amendments would be valid amendments to the Constitution of 1945, which, of course, would still be in effect as Georgia's Constitution. However, in the case of Clements v. Powell, 155 Ga. 278 (9) (1923), the General Assembly amended a proposed amendment, which had been proposed at the preceding session of the General Assembly, before it was submitted to the people for ratification. The Supreme Court, in a unanimous decision, upheld this action of the legislature, holding that:
"The act sought to be amended was a mere proposal of an amendment which had not become a part of the constitution. The act as amended was ratified, and as such became a part of the constitution."
It follows from the Clements case, if the General Assembly has the authority to amend a proposed constitutional amendment before it is submitted to the people, it also has the authority to repeal a proposed amendment before it is submitted. In view of the above and in answer to your second question, it is my opinion that the General Assembly has the authority to repeal proposed constitutional amendments before they are submitted to the people.

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June 10, 1963
ELECTIONS
Thank you for your letter inquiring as to the existence of State law requiring the racial segregation of registration lists and polling places in public elections.
I know of no State law of general application requiring such segregation and, furthermore, in the case of Anderson v. Courson, decided on January 8, 1962, the United States District Court for the Middle District of Georgia required the City of Albany to integrate its registration lists and polling places. See also my opinion of July 12, 1961, to the Honorable H. G. Rawls (Ops. Att'y Gen. 207 (1960-61)) concerning this matter.
June 11, 1963
OPINION TO THE DEPARTMENT OF BANKING
You requested an official opinion from this office interpreting Georgia Code Ann. 13-2001 (Supp.) which deals with bank directors, their number, election, term of office, and vacancies.
According to the factual situation set forth in your letter you have been asked to approve the election of three directors to the board of directors of a bank. They were added to the board by action of the board itself and following the annual meeting of stockholders called for the purpose of electing directors. You further state that the election which was made by the board was not for the purpose of filling vacancies occurring since the stockholders meeting at which time six directors were elected, but merely to increase the number of total directors from six to nine. According to your letter this action is defended on the ground that the by-laws of the bank provide that the number of directors may be not less than three nor more than twentyfive.
It is my opinion that the pertinent language of 13-2001 can be extracted as follows: "The affairs of each bank shall be managed by a board . . . who shall be elected by the stockholders . . . at meetings to be held annually.... Vacancies occurring in the intervals between elections shall be filled by the board of directors . . . which number when so fixed shall be the lawful number of directors of such bank until again changed in like manner."
The question then is whether the election of directors at the annual stockholders meeting called for that purpose fixes the number of directors for the ensuing year? The question must be answered in the affirmative.
The decision of Re Fleetwood Bank, 283 N.Y. 157, 27 N.E.2d 974 (1940), a New York case, contains the following lanugage interpretating a statute similar to the one in question.

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"The by-laws of the bank provided that the board of directors should number not less than five nor more than fifteen. It would seem to have been incidental to the reelection that the stockholders should first determine how many directors they wished to have for the ensuing year.
"Whether it was conduct incidental to the meeting or an amendment to the by-laws, it was quite proper for the stockholders to determine thereat the number of directors for the year following. When so determined that was the number for the year and death or resignation of one or more of the eight would constitute a vacancy or vacancies to be filled."
In other words, the election by the stockholders of a certain number of directors fixed, as a matter of course, the number of directors which would compose the board. To rule otherwise would in effect emasculate the provision of the statute requiring annual election of directors by the stockholders.
June 11, 1963
OPINION TO THE HIGHWAY DEPARTMENT
In your letter of June 10, 1963, you state that you are receiving inquiries from incorporated municipalities eligible for grants under the provisions of the Act approved October 8, 1962 (Georgia Laws 1962, p. 33 (Extra Sess.)), as amended by the Act approved April 9, 1963 (Georgia Laws 1963, p. 441), which require that the amended Act be construed and interpreted.
You state that you are concerned whether the construction and maintenance of streets and bridges thereon of municipalities, as expressed in the caption of the Act approved April 9, 1963, and in 1 and 8 thereof (Georgia Laws 1963, pp. 441, 444), and in the Act thereby amended, should be held to include such activities as acquisition of rights of way, sweeping and cleaning streets, installation of street lights and light poles, providing electricity for street lights, center line painting, purchase of street signs and paint therefor, purchase and rental of street construction and maintenance equipment, repairs to edges of sidewalks, erection of traffic signals, employment of traffic policemen, and garbage collection, the foregoing enumeration not being exhaustive but intended to be illustrative.
In the caption of the Act approved April 9, 1963, one of its purposes is stated as:
"to provide that construction and maintenance of streets and bridges thereon of the incorporated municipalities shall constitute activities incident to providing and maintaining an adequate system of public roads and bridges in this State; ..."
In 1 of the same Act, which substitutes a new 1 in the Act being amended, the purpose and intent of the General Assembly is declared to be that:

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"The construction and maintenance of streets and bridges thereon of the incorporated municipalities of this State shall be and constitute activities incident to providing and maintaining an adequate system of public roads and bridges in this State; ...."
In 8 of the amending Act, which inserts a new 6 in the Act being amended, it is provided that:
"Such funds shall be expended by the municipality for the purposes of construction and maintenance of its streets and bridges and not for any other purpose, . . . ."
State road funds in the amount of One Million Dollars are provided for grants to incorporated municipalities in 22-F of the General Appropriations Act of 1963 and 1964 (Georgia Laws 1963, pp. 224, 238). The funds provided are to be disbursed under the Act approved October 8, 1962, as amended by the Act approved April 9, 1963. In connection with any Act authorizing expenditure of State road funds there must be considered the Amendment to Article VII, Section IX, Paragraph IV, of the Constitution of the State of Georgia of 1945, which was proposed by Georgia Laws 1960, page 1297, and ratified November 8, 1960. I quote the pertinent portion of this reference:
"An amount equal to all money derived from motor fuel taxes received by the State Treasurer in each of the immediately preceding fiscal years, less the amount of refunds, rebates and collection costs authorized by law, is hereby appropriated for the fiscal year beginning July 1, of each year following, 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; and for grants to counties for aid in county road construction and maintenance, as provided by law authorizing the State Treasurer to make such grants...."
Construing the amended Act providing for the grant of funds in pari materia with the provision in the General Appropriations Act of 1963 and 1964 making funds available, and with the constitutional provision governing State road funds, I am of the opinion that the amending Act approved April 9, 1963, and the Act thereby amended, must be strictly construed and funds granted under the provisions of said Act expended only for the purposes expressed therein. The Act amended authorized the expenditure of funds granted for the purposes of "fulfilling their responsibility to construct and maintain streets and provide personnel and equipment to control and accommodate the flow of traffic therein." The amending Act approved April 9, 1963, eliminates the authority to expend granted funds for personnel and equipment to control and accommodate the flow of traffic.
Grants under the Act approved October 8, 1962, were payable from the general funds of the State, and not from State road funds.
It is my opinion that the General Assembly intended, taking into account the constitutional provision quoted above, that grants from

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State road funds should be expended only for construction and maintenance of city streets and bridges, and that the terms "construction" and "maintenance" were intended in a strict sense. It is apparent that the General Assembly considered that salaries of traffic policemen and cost of traffic control devices employed and purchased by municipalities would not be legitimate objects of expenditure by such municipalities of State road funds granted to them.
While the General Assembly would not, in view of this constitutional provision, be authorized to divert State road funds to other purposes, the provision in my opinion leaves considerable latitude to the Legislature in defining what shall "be and constitute activities" incident to providing and maintaining an adequate system of public roads and bridges; however, it has not attempted to confer the same latitude upon the municipalities in expending such funds granted to them.
I am constrained to hold, therefore, that the objects enumerated in your letter and other like objects would not constitute legitimate expenditures of funds granted to municipalities from State road funds under the Act approved October 8, 1962, as amended by the Act approved April 9, 1963. It is my opinion that labor and materials on and in streets and bridges in the construction and maintenance thereof by municipalities, with their own forces or under contract, are the only purposes for which expenditures of funds granted under the amended Act are authorized.
There was also proposed by Georgia Laws 1960, page 1211 an amendment to Article VII, Section II, of the Constitution, ratified November 8, 1960, authorizing the General Assembly to provide by law for granting of State funds to the municipalities of Georgia, in such manner and form and under such procedure as the General Assembly may prescribe. The General Assembly is authorized to provide the purpose or purposes for which such funds may be expended by the municipalities, and the General Assembly is authorized by this amendment to exercise the power of taxation over the entire State in order to carry out the provisions of the amendment.
I can not hold that this amendment supersedes or modifies the amendment pertaining to State road funds, already referred to and quoted in part. It is my opinion that as to grants of general funds to municipalities, the General Assembly may provide the purpose or purposes for which such funds may be expended, but in the case of grants of State road funds the General Assembly must restrict such expenditure to "activities incident to" providing an adequate system of public roads and bridges.
June 12, 1963
INTOXICATING LIQUORS
I am happy to answer your inquiry as to the law concerning the manufacture of distilled spirits. It will not be possible for me to set

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out all the Georgia laws dealing with the manufacture of distilled spirits in this letter, as they are voluminous and rather detailed. I am happy to point out certain fundamental laws, however, and to direct you to the Department of the State Government which will be able to furnish you with details.
In Georgia we have what are commonly referred to as "dry counties" and "wet counties." In the "dry counties" the so-called "bone dry" law still applies. See Georgia Laws 1915, page 77 Extra. Sess. Under this law the possession, sale and manufacture of spirituous liquors is absolutely prohibited. This law remains in effect in all those counties in the State of Georgia which have not specifically adopted the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors." Georgia Laws 1937-38, page 103 (Extra Sess.). Of the 159 counties, it is my understanding that only about eight have adopted the Act to legalize alcoholic beverages.
ln those counties which have adopted the Act to legalize alcoholic beverages, the manufacture of distilled spirits is possible. However,. it is closely regulated and the laws pertaining thereto are strictly enforced.
The law requires that you first obtain a license from either the municipality or the county where the place of business is to be located.. The State Revenue Commissioner is without authority to issue a State license until you have secured a local license. See Georgia Laws 1937-38, pages 103, 112 (Extra Sess.). The issuance of the local license is within the discretion of the local governing body. The issuance of the State license is at the discretion of the State Revenue Commissioner.
The provisions of the law to legalize alcoholic beverages do not apply to ethyl alcohol intended for certain commercial uses other than consumption as a beverage. You would also be subject to all the Federal laws and regulations applicable to the manufacture of distilled spirits.
For more detailed information, I would suggest that you contact the Alcohol Tax and Control Unit of the Georgia State Department of Revenue, State Office Building, Atlanta 3, Georgia.
June 13, 1963
PUBLIC SERVICE COMMISSION
You inquired as to the amenability of a client's contemplated transportation service to the Georgia Public Service Commission's jurisdiction. You state that you represent a company desirous of engaging in the business of furnishing drivers to transport motor vehicles of other companies by the drive-away method, which involves the utilization of the motive power of the vehicle being transported. You further state that this transportation would be intrastate and i.nter-city and

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would be "for hire" because your client would be compensated for the services rendered by its driver-employees in transporting such vehicles.
The Georgia Public Service Commission exercises regulatory jurisdiction over "motor carriers," customarily referred to as "contract carriers," and over "motor common carriers" under Georgia Code Ann. Chapters 68-5 and 68-6, respectively. Chapter 68-5 defines a motor carrier as "every person except common carriers, owning, controlling, operating, or managing any motor-propelled vehicle . . . used in the business of transporting persons or property for hire over any public highway in this State...." [Georgia Code Ann. 68-502 (c)] ; and Chapter 68-6 defines a motor common carrier as "every person owning, controlling, operating, or managing any motor-propelled vehicle . . . used in the transporting of persons and/or property . . . for hire on the public highways of this State as a common carrier." [Georgia Code Ann. 68-601 (e)].
Obviously, your client's contemplated transportation service would be amenable to regulation under either Code Chapter, if it intends to serve the public indiscriminately, because the drivers would operate the motor vehicles in the business of transportation property (in this instance the vehicles themselves) for hire, over public highways within this State.
The Commission has long construed drive-away carrier service as subject to its regulation under Code Chapters 68-5 and 68-6. This construction is reflected by the Commission's adoption thereunder of safety regulations, issued October 1, 1940, defining the term "driveaway operation" as meaning "any operation in which a single motor vehicle or combination of motor vehicles, new or used, constitutes the commodity being transported and in which the motive power of any such motor vehicles is utilized" [Safety Rule 1 (g)] and prescribing requirements governing such operations (Safety Rule 66) 1 These regulations have remained continuously in force, with slight modification, since their adoption and are presently reported as Rules 1 (g)2 and 663 of the Motor Carrier Safety Rules and Regulations, issued J anua1-y 1, 1963.
This administrative construction is further reflected by the granting of drive-away authority in: the reissuance of Class "B" Certifi,cate of Public Convenience and Necessity No. 1840, presently held
1. It is interesting to note that the Interstate Commerce Commission has adopted analogous safety regulations under similar legislation. Compare: 49 USCA 303 (14) (15), with Georgia Code Ann. 68-601(e) and 68-502(c); 49 CFR, 165.2 (i) (2) and 190.9 with Rule 1(g) of GPSC Motor Carrier Safety Rules and Regulations; and 49 CFR, 193.17, with Rule 66 of GPSC Motor Carrier Safety Rules and Regulations.
2. See compilation entitled "Laws and Rules of Georgia Public Service Commission," issued January 1, 1963, p. 130.
3. Id, p. 156.

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by Dealers Transit, Inc. ;4 the reissuance of Class "E" Certificate No. 1045, presently held by Complete Auto Transit, Inc. ;5 the issuance of Class "E" Certificate No. 2558, presently held by National Trucking Company ;6 and by the withholding of drive-away authority in the reissuance of Class "B" Certificates presently held by W. T. Mayfield Sons Trucking Company/ Southeastern Transfer & Storage Company. Inc.,8 and Superior Trucking .Company, Inc.9 Furthermore, other cer-. tificates issued by the Commission authorize the transportation of motor vehicles by the drive-away method without employing the term "drive-away."
Another reflection of this administrative construction is found in Item 10 of the Appendix to Rule 8 of the General Motor Carrier Rules and Regulations, which defines the heavy machinery authorization presently held by approximately 145 class "B" carriers.10 The Item was placed in its present form by an amendment, issued on December 3, 1957,11 and modified on March 19, 1958,12 prohibiting the transportation, under authority of such Item, of motor vehicles by the drive-away method. Upon initiation of the amending process, all holders of class "B" certificates were given formal notice and full opportunity to be heard either for or against the proposed amendment. The Commission advises that, while some parties opposed various features. of the proposal, no party challenged the Commission's jurisdiction to invoke the driveaway prohibition. Obviously, the absence of such opposition during the amending process and afterwards constitutes a. tacit construction by the affected carriers and the Commission in favor of its jurisdiction over drive-away service.
The Commission advises that it has construed its highway carrier jurisdiction as enveloping such drive-away service since the adoption of the Motor Carrier Acts of 1931,13 and that this construction has been unquestioned and uniformly applied. Such a construction of these
4. Drive-away authority originally granted on May 25, 1944.
5. Drive-away authority originally granted on January 10, 1945.
6. Drive-away authority originally granted on March 31, 1947.
7. Holds Certificate No. 1366. Drive-away restriction inserted therein on May 21, 1958.
8. Holds Certificate No. 876. Drive-away restriction inserted therein on May 21, 1958.
9. Holds Certificate No. 1087. Drive-away restriction inserted there-. in on November 16, 1951.
10. There are approximately 425 class "B" certificates issued and outstanding at the present time.
11. Minutes of the Georgia Public Service Commission, Vol. 25, p. 289.
12. Id, p. 383.
13. Georgia Laws 1931, Extra Sess., p. 99; Georgia Laws 1931, p. 199. These Acts are codified unofficially as Chapters 68-5 and 68-6,. respectively, of the Georgia Code Annotated.

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statutes by the public agency, whose duty it is to administer and enforce them, is a cogent argument in favor of such construction.14
In view of these authorities, it is my opinion that the drive-away transportation service contemplated by your client is subject to the regulatory jurisdiction of the Georgia Public Service Commission.
June 14, 1963
TAX EXEMPTIONS
We are in receipt of your letter pertaining to homestead exemptions.
Your first question was: "Would a person living on his property only a few days per year but on January 1 be eligible if he did not get exemption elsewhere?"
Georgia Laws 1937-38, page 145, as amended by Georgia Laws 1939, page 98, Georgia Laws 1943, page 103, Georgia Laws 1945, page 455, Georgia Laws 1952, pages 265, 317, and Georgia Laws 1955, page 122, set forth the homestead requirements, one of which is that the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption. Therefore, a person who only lived on his property a few days out of the year would not be entitled to the exemption, even though he did not get an exemption otherwise. This would not be the case if the person was away from his home serving in the Armed Forces. If he was in the Armed Forces and this caused him to be away from his home, he would be entitled to the exemption.
Your second question concerning homestead is: "Would a person owning and operating a farm, working on the farm and being on the farm practically all day the year round, but eating and sleeping in a home not owned by him about two miles from his property in the same county, be eligible for an exemption?"
14. Thomp,son v. Eastern Air Lines, Inc., 200 Ga. 216, 217 (3), 224, 36 S.E.2d 675, 39 S.E.2d 225 (1946); Mathis v.Fulton Industrial Corp., 168 Ga. '719, 722, 149 S.E. 35 (1929) ; Wright v. Hardwick, 152 Ga. 302, 310, 109 S.E. 903 (1921) ; City of Cochran v. Lanfair, 139 Ga. 249 (2), 259, 77 S.E. 95 (1913) ; Carroll v. Wright, 131 Ga. 728, 736, 63 S.E. 260 (1908); Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669, 680, 58 S.E. 157 (1907); Epping v. City of Columbus, 117 Ga. 263, 264(7), 273, 43 S.E. 803 (1903) ; Howell v. State, 71 Ga. 224, 225 (2C), 229, 51 Am. Rep. 259 (1883) ; Wellborn v. Estes, 70 Ga. 390 (2a) , 399 (1883) ; Solomon v. Commissioners, 41 Ga. 157, 161 (1870); Carter v. Oxford, 102 Ga. App. 762, 767, 118 S.E.2d 216 (1960), aff'd 216 Ga. 821, 120 S.E.2d 298 (1961) ; Green v. Page, 9 F. Supp. 844, 847 (S.D. Ga. 1935) ; 82 C.J.S. Statutes 359; 73 C.J.S. Public Administrative Bodies and Procedure 108.

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As you can see from the requirements of the law above, such a person would not be actually occupying the farm as a permanent residence and, therefore, he could not claim any part of the farm as a homestead exemption.
June 14, 1963
SPECIAL ELECTIONS
Thank you for your letter stating that a special election will soon be held in Oconee County and inquiring as to the voter registration deadline for such election and as to the eligibility of eighteen-yearold registrants to vote therein.
Section 34-126 of the Georgia Code Annotated (Georgia Laws 1958, pp. 269, 285) fixes the registration deadline for a special election by providing that "Five days after the call of said special election, the registrars shall cease taking applications from persons desiring to register and qualify to vote therein, . . ."
As to your second inquiry, please note Georgia Code Ann. 34-124 (Georgia Laws 1958, pp. 269, 285) which renders ineligible to vote a registrant "who is not at least 18 years of age on or before the date of such election."
A copy of the Georgia Voters' Registration Act (Georiga Laws 1958, p. 269; Georgia Code Ann. Ch. 34-1), as amended through the 1963 regular session of the General Assembly is enclosed for your convenience.
June 17, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to reply to your letter requesting my official opinion on five questions relating to loans of equipment and facilities to the State and local education systems for vocational training by the Federal authorities, as authorized under the National Industrial Equipment Reserve Plan.
The statutory authority of the Federal Government to lend equipment and facilities under the above mentioned plan is contained in the National Industrial Reserve Act of 1948, 50 U.S.C. 451-462, 62 Stat. 1225, and the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended.
You state in your letter that the Federal Government has a program of assistance to the states in developing vocational and technical training programs by utilizing equipment owned by the Federal Government, that this program provides for the loaning of equipment to

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state and local school systems under provisions of the National Industrial Equipment Reserve Plan and that you would like very much for the State-owned and operated technical and vocational schools at Clarkesville and Americus to participate in this program.
It is my understanding that in order to participate in this program, it is necessary for said schools to enter into a loan agreement with the General Services Administration of the Federal Government.
You further state that in order to comply with the rules and regulations of the Federal office responsible for this program, it is necessary to obtain an opinion from me on the following questions:
"1. Will the Agreement when executed by Lender constitute a valid and binding obligation and commitment upon Borrower in accordance with its terms, when all requirements deemed desirable and necessary to protect the interests of Lender have been complied with by Borrower?"
In my opinion, any agreement entered into between the State or local boards of education for the purpose of utilizing equipment and facilities owned by the Federal Government, as contemplated by the National Industrial Equipment Plan, would be a valid and binding contract between the parties thereto. Georgia Code Ann. 32-909 provides in part as follows :
"The county boards of education shall have the power to purchase, lease or rent school sites; build, repair or rent schoolhouses, purchase maps, globes and school furniture and make all arrangements necessary to the efficient operation of the schools . . ." [Emphasis added].
Georgia Code Ann. 32-413 provides in part as follows:
"Said Board is hereby authorized and empowered to receive, accept, hold and operate, on behalf of the State of Georgia, donations, grants, gifts, devises and bequests of real, personal and mixed property of every kind and character, to lease, manage and otherwise administer the same for the use, benefit and behoof of the common school system of Georgia, and to accept on behalf of the State of Georiga any funds which may be now or hereafter provided for, or be or hereafter become available or allotted to the State of Georgia by virtue of any appropriation by Congress or under any governmental regulation, order or declaration of policy for either vocational or other educational purposes conducted either in or out of school, in connection with, or as an incident of, any program of vocational education now or hereafter established as essential to national defense either for industrial or agricultural occupations, and whether as part of a Federal or a State program or a combination of both, in furtherance of vocational educational objectives generally; and said Board is authorized and empowered to acquire and hold title for and on behalf of the State of Georgia, for the benefit of the common school system thereof, any equipment and/or supplies, both permanent and expendable, that may be necessary for such purposes, and

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to act as the contracting agent therefor and the custodian thereof, and to delegate, in whole or in part, any function or activity enumerated or contemplated hereunder, and to contract with and cooperate with any department, agency or instrumentality either of the State of Georgia or of the United States, in any manner which shall be requisite or incident hereto, which in the judgment of said Board may be deemed proper for the carrying into effect of the purposes of this Chapter . . ." [Emphasis added].
The sE!cond question you pose is as follows:
"2. Is the vocational industrial education and training program referred to in the Agreement duly authorized by state and local laws, rules, orders, regulations and directives?"
The vocational industrial education and training program referred to in the agreement is duly authorized by law in the Georgia Code Ann., Ch. 32-22. It is provided by Georgia Laws 1931, pp. 7, 40, that the State Board of Vocational Education is abolished and all powers, duties, functions and operations incidental thereto are transferred to the State Board of Education. Georgia Code Ann. 32-2218 provides:
"The State Board of Education of Georgia, for and on behalf of the State of Georgia, is hereby authorized and empowered, to locate, set up, establish, operate, maintain and carry on state area trade, vocational and industrial schools for teaching vocational, industrial and trade subjects." Your third question states:
"3. Is Borrower authorized under such laws to operate the vocational industrial education and training program, to enter into the Agreement and to undertake to perform, and perform, all obligations, agreements and acts required under and in connection with the Agreement?"
As to this third question, see 32-2218, supra, and 32-413, supra.
Your fourth question states:
"4. Is Borrower authorized to expend the funds necessary to carry out its obligations under the Agreement notwithstanding the fact that the Facilities are owned by the United States Government and notwithstanding the fact that Borrower has a contingent obligation to return the Facilities to the United States Government and to pay the costs of repair and replacement of the Facilities when required under the terms of the Agreement?"
As to this fourth question, see Georgia Code Ann. 32-413. supra. The fifth and final question you pose is as follows:
"5. Are funds subject to attachment or levy for the payment of workmen's compensation claims, mechanics' liens, state or local fees, municipal claims or tax liens, or judgments against the State or any political subdivision thereof, including the cities and counties and their school boards?"

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A sovereign state is not subject to suit unless permission of said state is first had. The XI Amendment of the Constitution of the United States is construed so as to prohibit suits against a state by persons, firms or corporations being residents of said defendant state unless the state consents to be sued. In this connection, see Truitt v. State of Illinois, 278 F.2d 819 (7th Cir. 1960) It was stated by the Supreme Court of Georgia in Ramsey v. Hamilton, 181 Ga. 365 (1935) :
"The present suit is plainly and avowedly against the officers in their official capacity ... that the defendant, George B. Hamilton, as Treasurer of the State of Georgia . . . and that the Regents of the University System of Georgia be enjoined from receiving [funds] from the Defendant Hamilton as Treasurer of the State of Georgia. . . ."
After considering the foregoing facts, the Court further stated:
"The denominations are the antithesis of descriptio personae. . . ."
Headnote Two in the Ramsay case, supra, states:
"The petition is, therefore, in effect a suit against the State of Georgia which cannot be maintained without its consent."
Considering the foregoing statutes and applicable case law, it is my opinion that:
A. The local and state boards of education have the capacity to contract and such an agreement would be binding and valid.
B. The Vocational Educational Program is duly authorized to function as such under state and local law.
C. That the borrower, a party to the contract, is authorized to undertake, perform and fulfill its obligations under the contract.
D. The borrower is enabled by law to carry out and fulfill its duties and obligations under the agreement notwithstanding the fact that title to the subject facilities and equipment remains in the United States Government.
E. That said funds specified and provided for in the contract between the parties are not subject to claims by persons, firms or corporations not a party to the contract.
June 17, 1963
CORONER'S INQUEST
This is to acknowledge receipt of your letter, in which you ask:
"Under what conditions should a coroner hold an inquest, and what is the method of conducting inquests. Specifically, the information needed is whether or not an inquest should

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be held if witnesses were present at the time of the injury leading to death or at the time of death, and also whether or not an attorney representing persons suspected of violence may directly examine witnesses at an inquest.
"If you can refer me to any bulletin or other work relative to the conducting of an inquest, I will greatly appreciate it."
Chapter 21-2, Georgia Code Ann. deals with this question and provides the duties of the coroner and also the conditions and circumstances under which an inquest should be held.
As to whether or not an attorney representing persons suspected of violence may directly examine witnesses at an inquest, it is my personal and private opinion that an inquest is not a trial, nor is it a commitment hearing. It is an investigation for the purpose of determining the cause of death. Therefore, an attorney representing a suspected criminal would not have a legal right to appear at such inquest and examine witnesses.
June 17, 1963
INTOXICATING LIQUORS
This is in reply to your request for information pertaining to the sale of wine in this State for industrial use.
The Georgia Code provisions pertaining to the taxation, regulation, and sale of wine contains no exemption whatsoever, and for this reason wine products, even though they may be intended for industrial purposes, must be taxed at the rates contained in the Code. See Georgia Code Ann. 58-901.
Our Code provides that no person or firm or corporation may sell wine in this State without obtaining a license issued by the Department of Revenue, and unless your firm has obtained such a license, it would not be authorized to make the sale in question. See Georgia Code Ann. 58-913 and 58-928. Your company would have to supply the wine to a Georgia licensed distributor, who could then arrange to make the sale to the company in question.
June 20, 1963
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
You requested that we review the "Peters Park" property of the Georgia Institute of Technology and give our opinion whether such property is now free of all restrictions and whether the Georgia Institute of Technology is thus free to develop such property as it may see fit. We have examined the material which you enclosed and also made certain other investigations into this question. Our findings of fact are substantially as follows:

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The property was originally vested in Peters Land Company, a corporation of Fulton County, Georgia, under a warranty deed from the Peters Improvement Company, such deed being dated February 1, 1890 and recorded in Deed Book Q3, p. 299, Fulton County Records. The next recorded conveyance of the property is a warranty deed from Peters Land Company to the City of Atlanta, dated April 18, 1921, recorded in Deed Book 718, p. 262, Fulton County Records. This deed describes the property as being a tract surrounded by West 3rd Street, West 4th Street, Fowler Street and East Fowler Drive. The deed also contains the following provisions:
"The said above described property is conveyed to the City of Atlanta for Park purposes only and upon condition that the said City shall maintain the said Park for public purposes only, in such manner as the City may deem best for the interest of the public, and that the same shall never be used for any other purpose.
"This deed is made under and by virtue of a resolution of the Mayor and General Council of the City of Atlanta agreeing to accept the above described Land for public purposes and in accordance with a proposition heretofore made to the Mayor and General Council of the City of Atlanta by the Peters Land Company under date of January 20th, 1921.
"The City of Atlanta furthermore agrees to have and maintain said Park under the name and style of Peters Park, in honor of the distinguished family heretofore residing in the City of Atlanta and which has made the conveyance for Park purposes as above indicated."
The next deeds in the chain of title are two quitclaim deeds. The first is from the Peters Land Company to the City of Atlanta, dated July 1, 1946, recorded in Deed Book 2112, p. 473, Fulton County Records. The second is a quitclaim deed from the City of Atlanta to the Regents of the University System of Georgia, dated July 3, 1946, recorded in Deed Book 2112, p. 474, Fulton County Records.
Inquiry disclosed that the second deed was executed pursuant to a resolution adopted by the Council on July 1, 1946, concurred in by the Aldermanic Board and approved by the Mayor. The resolution contained recitals to the effect the Regents desired to develop the property for the use of Georgia Tech which can be considered as being in the public interest, and indicates a complete abandonment of the property for park purposes.
There are no restrictions of record on this property which could in any way affect its use by Georgia Tech except the restriction contained in the deed from Peters Land Company to the City of Atlanta, dated April 18, 1921. It is thought the quitclaim deeds could have the effect of removing this restriction, but an examination of the case law should be beneficial.
In Kirkland v. Johnson, 209 Ga. 824 (1953), head note 1, it is stated:

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"Though land be bought for a public use, if not actually used for such purpose it can not be said to be held by the municipality affected by a public trust, and may be sold. Kings County Fire Insurance Co. v. Stevens, 101 N. Y. 411; City of Williamsburg v. Lyell, 132 Va. 455 (112 S. E. 666) ."
And further, in head note 4, it is said:
"As a general rule, where property held by a municipality for governmental or public use is abandoned as to such use, the municipality may sell it without express legislative approval (citing numerous cases). . . for sufficient reasons the city may not wish to build on the same lot; ... which ... may be no longer used by the public. The city from time to time may have . . . property ... not used by the public. All such property of a municipal corporation, not devoted to the public use, may be sold. . . ."
The case of Norton v. City of Gainesville, 211 Ga. 387 (1955), though not a full-bench decision, has been cited approvingly in subsequent cases. See, e.g., Harper v. City Council of Augusta, 212 Ga. 605 (1956). In the Norton case, the opinion read in part:
"In Pettitt v. Mayor & c. of Macon, 95 Ga. 645 (23 S.E. 198), a private citizen sought to enjoin the City of Macon from disposing of a part of land which had been dedicated for use as a cemetery. It was there held that the mere appropriation by a municipal corporation to a particular public use of a part of its own public domain is not in itself an irrevocable dedication of such property to such particular use as will prevent a subsequent appropriation of the same property to some other public use as the interest of the public may thereafter require; and in order for such appropriation to amount to an irrevocable dedication, there must be upon the part of the public such use under the first appropriation that a change in use will operate as a serious injury or inconvenience to the general public; . . ." 211 Ga. at 389.
A third case which is interesting and enlightening is Harper v. City Council of Augusta, supra, where it is stated that:
"[A] s to the latter, [property held for public use] ... it is only where the public use has been abandoned or the property has become unsuitable or inadequate for the purpose for which it was dedicated that the city has power to dispose of such property ... Legislative power to authorize the discontinuance of public parks and the sale of park lands cannot be questioned where the fee is in the city and when in so doing no private property is taken."
It seems, then, that we have a question of whether the Peters Park property was ever dedicated to the public use. A mere resolution by the city without more is generally held to be ineffectual as an irrevocable dedication unless accompanied by some use on the part of the public. Certainly a mere acceptance of property with a restric-

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tion in the conveyance would not impose a dedication if it were never accepted by the public through its use and enjoyment. We have secured several affidavits from residents and officials which show conclusively there has never been a general public use of the Peters Park property such as would be considered sufficient to create a dedication.
Thus, since the city had secured a quitclaim deed from Peters Land Company and there has never been an acceptance by the general public, it is my opinion the city possessed the fee and would be thus empowered to make legal conveyance of the property unencumbered by any restrictions unless voluntarily imposed by the city. I also am of the opinion the city was possessed of complete power to make such a conveyance of the property to the Regents of the University System in order that it might be used by the Georgia Institute of Technology for its public purposes. Of course, any usage by the Regents, which is a public corporation and constitutional body, would be for public purposes.
Therefore, I am of the opinion there are no restrictions which would in any way encumber use of the Peters Park property by Georgia Institute of Technology in accordance with applicable provisions of law.

June 20, 1963

BANKS AND BANKING

I have your letter in which you ask if the banking laws of Georgia permit payment to be stopped on a certified check upon the direction of the drawer.

The applicable Georgia statute is Georgia Code Ann. 13-2037,

which is as follows:



"(13-2037) Certifying Checks.-No check shall be certified except by the president, a vice-president, cashier, or an assistant cashier of a bank. It shall be unlawful to certify any check, draft, or order upon the bank, unless the drawer of such check, draft, or order has on deposit with the bank, at the time such check, draft, or order is certified, an amount of money equal to the amount specified in such check, draft or order. Such certification shall be entered on the face of such check, draft, or order and the check, draft or order so certified shall be charged against the drawer's account immediately. Any check certified by a proper official shall be good and valid obligation against the bank; but the act of any officer in violation of this Section shall subject him to the penalties provided in this Act. (Acts 1919, p. 207.)"

The language to the effect that any check certified by a proper official shall be a good and valid obligation against the bank makes

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it clear that when a check is certified it becomes the direct obligation .of the bank. Therefore, the drawer is discharged, the check being paid so far as he is concerned. It thus would appear that a certified check is as much an obligation of the bank as a certificate of deposit or a note of the bank and the same rules would govern so far as refusing payment is concerned. Payment cannot be stopped on such a check as the term is ordinarily used.
June 20, 1963
DISCOUNT COMPANIES
I have your recent letter in which you inquire about a discount company, as yet unorganized, purchasing accounts from local merchants.
Since your letter made no indication if such a company intended to purchase stocks, inventories, or fixtures it is assumed that this intended transaction includes only open accounts and installment accounts.
From the statement contained in your letter, I understand that your organization will not advance or ]end money or make interest charges thereon. Therefore such a business operation will not be regulated by the Industrial Loan Act as provided in the Georgia Code Ann., Chapter 25-3.
There is no applicable state license tax which your organization would be required to pay unless such an organization should become engaged in business as a collection agency, which would necessitate payment of a $200.00 license tax to the county where each office or branch office is located as provided in Georgia Code Ann. 92-503. However, since you do not contemplate collecting accounts for another person or firm and since these accounts are to be purchased and owned by your organization, this would not apply.
As to the laws of usury: It is understood that you can collect no more than the purchaser originally agreed upon in his contract with the merchant from whom you will purchase the accounts and that your profit will be derived from the difference between the discount price you will pay to the merchant and the original amount of the contract or the account which the customer will pay to you. This holds true because one cannot change the terms of a contract of this type (for example: Adding interest charges) without the consent and agreement of the customer who originally made the contract 'Nith the merchant.
In view of what is written above your discount company would not be regulated by any State agency or department and further, there is no applicable business, occupation or license tax on such an operation described in your letter.

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The prospective business to be operated by your associates will be governed by the provisions of the new Uniform Commercial Code (effective April 1, 1963) which pertains to most commercial transactions. U. C. C. 109A-9-102 (B) provides that any sale of accounts, contract rights or chattel paper comes under the provisions of the Commercial Code. This particular section goes no further than defining which transactions are subject to this provision.
Section 109A-9-104 (e), U. C. C., provides which transactions are not subject to the provisions of the Commercial Code: The sale of accounts, contract rights or chattel paper as part of the sale of the business out of which they arose, and the sale of accounts, contract rights or chattel paper for the purpose of collection only.
The U. C. C. 109A-9-307 (2), provides as follows as to security interests:
"In the case of consumer goods and in the case of farm equipment having an original purchase price not in excess of $2,500.00, a buyer takes free of security interests even though perfected, if he buys without knowledge of the security interests, for value, and for own personal, family, or household purposes or his own farming operations unless prior to the purchase the secured party has filed a financial statement covering such goods."
A "security interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention of reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer is limited in effect to a reservation of a "security interest." This term also includes any interest of a buy<er of accounts, chattel paper or contract rights.
Sections 109A-9-401 through 109A-9-403 of the U. C. C. provide for the place, requisites and form for filing an order to perfect security interests when necessary.
June 20, 1963
OPINION TO THE HIGHWAY DEPARTMENT
In your letter you request my opinion on the application of 2 of the Act approved October 8, 1962 (Georgia Laws 1962, Sept.-Oct. Ex. Sess., pp. 33, 34), as amended, to the City of Macon, and, specifically, you inquire what population figure is to be used for that municipality in making the computations required by subsections (a) and (b) of 2.
You state that the 1960 Census of Population was conducted as of April 1, 1960; that according to that census the population of the City of Macon was 69,764, and that the Director of the Bureau of the Census on September 15, 1961, certified that the population of an area ,annexed by the city on June 1, 1961, as of April 1, 1960, was 53,112,

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and that the population of the area comprising the City of Macon and the area annexed on June 1, 1961, was 122,876, as of April 1, 1960.
The City of Macon is now insisting that the official population of the City of Macon is 122,876, according to the United States Decennial Census of 1960, and that this population figure is to be used in making the computations required by subsections (a) and (b) of 2.
By Georgia Laws 1961, page 2441, the corporate limits of Macon were extended to include described contiguous territory in Bibb County, effective June 1, 1961, subject to approval of voters residing in the city and in the territory proposed to be annexed, in a referendum election. The referendum resulted in a vote favoring annexation, both in the city and in the territory proposed to be annexed, and accordingly such territory became a part of the city on June 1, 1961.
For convenience of reference, 2 is quoted:
"To the extent that funds are made available by the Budget Authorities pursuant to Section 50 (J) of the General Appropriations Act of 1961, approved April 5, 1961 (Georgia Laws 1961, p. 356), or to the extent funds are made available for this purpose by any future law, the Director of the State Highway Department is authorized and directed to grant said funds to the incorporated municipalities of this State, as defined herein, on the following basis:
"(a) The total sum available at any given time for grants under this Act shall be divided by the total population, according to the United States decennial census of 1960 or any future such census, of all incorporated municipalities, as defined in Section 3, to arrive at an initial per capita amount. The population of each such municipality shall be multiplied by the initial per capita amount. When the sum so determined for any such municipality equals less than 5/10,000 of the total sum available for distribution, such municipality shall receive 5/10,000 of such total sum, which amount is hereby designated the 'minimum grant'.
"(b) The amount remaining for distribution after deducting the total amount of minimum grants determined under subsection (a) hereof, shall be divided by the total population of all such municipalities, exclusive of those receiving the minimum grant, to arrive at an adjusted per capita amount. The amount of the grant to which each such municipality not receiving the minimum grant is entitled shall be the sum of the adjusted per capita amount multiplied by its population."
From the above, it will be noted that the Director of the State Highway Department, in computing the amounts to be distributed to the municipalities at any given time, must first divide the total sum available for grants by the total population, "according to the United States decennial census of 1960 or any future such census," of all eligible municipalities to obtain the "initial per capita amount." Then, "the population of each such municipality shall be multiplied

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by the initial per capita amount" in order to determine which municipalities shall receive the "minimum grant" of 5/10,000 of the total sum available. [Subsection (a)].
I might point out that the quoted language is that often found in so-called "general laws of local application." Compare Sumter County v. Allen, 193 Ga. 171 (1941) ; Estes v. Jones, 203 Ga. 686 (1948) ; Murphy v. West, 205 Ga. 116 (1949); Barge v. Camp, 209 Ga. 38 (1952). I am not aware that it has ever been held that the annexation of territory by a municipality with a resulting gain in population would change its population within the meaning of such laws until the next decennial census.
The population of the City of Macon, within the meaning of 2 (a) of the subject Act, is that contained in the report of the 1960 decennial census, 69,764, and that figure should be used in all computations under 2.
June 21, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
I have received your letter in which you request the advice of this office with reference to submission of expense vouchers to cover a $35 fee assessed against each of you for registration for the Executive Management Seminar held in May at the University of Georgia.
It is my understanding that the Seminar was arranged and scheduled by the Governor's Commission for Efficiency and Improvement in Government (Georgia Laws 1963, page 176). Among the duties of the Commission declared in the creating Act is the preparation and submission to the Governor of reports which set forth findings and recommendations with respect to the more efficient and economical operation of the State government, together with plans to improve public administration.
Pursuant to such a recommendation the Governor directed the members of the State Board of Pardons and Paroles, along with other State department heads, to attend the Seminar listed above for the betterment of governmental operation.,
For these reasons, it is my opinion that the expenditure required of each member who attended this Seminar at the direction of the Governor would be an expense incurred as an official obligation of the office and properly recompensable from the operating account of the State Board of Pardons and Paroles. I find nothing in Georgia Code Ann. 77-503 which establishes the salaries and expense allowances of the Members of the Board which is in conflict with this opinion.

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June 21, 1963-
OPINION TO THE GEORGIA HISTORICAL COMMISSION
This is in reply to your letter in which you requested my opinion on the following two questions :
1. Whether or not there exists a conflict of interest where Mr. Henry Tumlin is employed by the Historical Commission as custodian of the Etowah Mounds and Museum in Bartow County, Georgia, while his wife owns and operates a gift shop located across the road dividing the Tumlin property from the State property.
2. Whether or not the operation of the Etowah Mounds and Museum "suffers from the competition of the possible attractive features of a recreation area on Mr. Tumlin's adjoining property, over which there extends a 'farm road'."
As to the first question presented, for there to be a conflict of interest in violation of Georgia law, the facts as presented in your letter must constitute a violation of the "Honesty Acts" of 1956 or 1959. The provisions of the 1956 Act, set out in Georgia Laws 1956, p. 60, provides in 1 that it shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services~ or a combination thereof, when such purchase or sale would benefit or be likely to benefit such official or employee. Section 2 of the 1956 Act provides as follows:
"No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon."
Section 3 of the 1956 Act provides as follows:
"No member of any State board, bureau, commissiOn or other State agency by whatever name called, or of any authority created by law, shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, unless such person operates a regularly established business enterprise which, when selling such goods or services, or both, to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of goods or services, or both, and all other requirements in connection with such transactions."
Since the facts presented here do not reveal the existence of any transaction with the State involving the sale to the State of goods or supplies or property or services from which Mr. Tumlin derives.

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a benefit, there is no violation of the provisiOns of the 1956 Act. This is true, of course, because any sale of goods, from the operation of the gift house, is made to the public and not to the State.
The 1959 "Honesty Act," set out in Georgia Laws 1959, p. 35, 2, provides as follows:
"Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
If there is a conflict of interest in violation of the 1959 Honesty Act on the part of Mr. Tumlin, it is covered by the above 2 of the Act. In said 2 it is pointed out that for an employee of the State of Georgia to violate this section he must "for himself or in behalf of any of the aforesaid busines entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof." Clearly, Mr. Tumlin has not violated this section of the 1959 Honesty Act since there is not involved any sale of goods, etc. to the State of Georgia from which Mr. Tumlin would derive a benefit.
In view of the above, and in answer to your first question, it is my opinion that the applicable laws of Georgia have not been violated by Mr. Tumlin as a result of the operation of a gift house by his wife on property owned by her across a road from the Etowah Mounds and Museum in Bartow County.
With reference to your second question, it raises a question of fact which, in my opinion, has no bearing on the problem raised in your letter.
June 21, 1963
OPINION TO THE TEACHERS RETIREMENT SYSTEM
In your letter you asked for my opinion whether a mother and legal guardian can legally effect a release of any valid legal claims

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her minor daughter might have against the Retirement System for payment of benefits to her, and whether the mother might assign such benefits over to another person.
It is my opinion she could not do so, and even if the release or other document were concurred in and signed by the daughter, it would still not be complete protection, for upon attaining legal age she might repudiate the entire transaction and proceed against the Teachers Retirement System. If a court order could be secured which directly authorized the mother to execute such a release, or better still, which by its judgment effected the release and directed that Teachers Retirement pay over the moneys to someone other than the named beneficiary, being the minor child in question, then this would be ample protection.
June 21, 1963
BANKS AND BANKING
You have asked whether or not there is any legal limitation on the brokerage fee brokers may charge a borrower.
I call your attention to Georgia Code Ann. 57-104, which states:
"Where the lender neither takes nor contracts to take more than lawful interest, the loan is not rendered usurious by money paid or agreed to be paid others by the borrower in order to obtain the loan: Provided, however, that this section shall be be applied in accordance with the modification expressed in section 25-324."
In connection with this Code Section, I call to your attention to the case of Merck v. American Tweehold Land Mortgage Co., 79 Ga. 213 (1887), Headnote 1, in which the Court stated:
"Where the lender of money neither takes nor contracts to take anything beyond lawful interest, the loan is not rendered usurious by what the borrower does in procuring the loan and using its proceeds. Thus, the borrower contracts with one engaged in the intermediary business of procuring loans, to pay him out of the loan for his services, and does so pay him, will not infect the loan, the lender having no interest in such intermediary business or its proceeds."
I further call your attention to the case of Harvard v. Davis, 145 Ga. 580 (1916), Headnote 4 (a), wherein the Court stated:
"Upon a plea of usury the burden of proof is upon the party pleading missions or fees of such magnitude as, when added to the conventional rate of interest and other charges, would make a sum exceeding eight per cent. per annum for the use of the money during the time of the loan, but if the lender did not authorize the charge and had no knowledge of it and

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did not share therein, the transaction would not on account thereof be rendered usurious relatively to the lender."
Nowhere have I found any limitation on the amount that a broker may charge for his services in the way of commissions or fees.
June 21, 1963
OPINION TO THE GOVERNOR
You have asked my opinion as to whether an officer, director and stockholder of a bank engaged in ordinary banking transactions with the Stone Mountain Memorial Association may be a member of the Stone Mountain Memorial Association in view of the provisions of the "Honesty Acts" of 1956 and 1959.
The provisions of the 1956 Act, set out in Georgia Laws 1956, p. 60, provides in 1 as follows:
"It shall be unlawful for any fuU-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit or be likely to benefit, such official or employee. "
Section 2 of the 1956 Act provides:
"No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon."
Section 3 of the Act states:
"No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, unless such person operates a regularly established business enterprise which, when selling such goods or services, or both, to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of goods or services, or both, and all other requirements in connection with such transactions."
Section 4 of the 1956 Act provides:
"No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or

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other State agency, or any such authority, on which such person is a member."
It seems clear that the prohibition set out in the above quoted sections of the 1956 Law would not prohibit an officer, director and stockholder of a bank engaged in ordinary banking transactions with the Stone Mountain Memorial Association from being a member of the Association.
The prohibition in 1, of the Act is against "any full-time appointive State official." The prohibition set out in 2 and 3 of the Act is against any member of any State board acting in his official capacity as "dealer, agent or broker, or in any other manner, in connection with the sale of goods' or services" to the State. In the instant case the board member connected with the bank would not, as a member or as person, or as a dealer, agent or broker, or any other manner, be dealing with the State in connection with the sale of goods or services.
As to the prohibition set out in 4 of the Act, I have previously ruled, on April 14, 1961 (Qp,s. Att'y Gen. 577 (1960-61)), that a corporation may submit a bid on management of apartments for the Board of Regents even though a member of the Board of Regents is a director of the corporation. I pointed out in the Opinion that 89-916 of the Georgia Code Annotated ( 4 of the 1956 Act) prohibits persons from contracting with a State agency. In the situation in question a corporation is obviously not a member of the Board of the Association.
The 1959 "Honesty Act" set out in Georgia Laws 1959, p. 35, 2 thereof, provides as follows:
"Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other busines entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
As I stated in my Opinion rendered on April 14, 1961, in construing 2 of the.Act, "... said Act refers to the sale of 'goods, wares or merchandise, personal property or other chattels,' in prohibiting an agent of the State from contracting with the State for the

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sale of goods . . .," and in my opinion would not be prohibitive of an ordinary banking transaction between a corporation and the Stone Mountain Memorial Association.
It is my opinion that membership on the Stone Mountain Memorial Asociation of an officer, director and stockholder of a bank engaged in ordinary banking transactions with the Stone Mountain Memorial Association which did not sell goods, wares or merchandise, or other chattels or services to the Stone Mountain Memorial Association, would not be in violation of either the 1956 "Honesty Law," or the 1959 "Honesty Law."
June 21, 1963
OPINION TO THE REVENUE DEPARTMENT
This is in reply to your letter concerning the confidential nature of application for liquor permits in this State.
Georgia Code Ann. 92-8414 provides:
"The information secured by the Commissioner incident to the administration of any tax shall be confidential and privileged and neither the Commissioner nor any member or members of his staff shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer . . ." (Emphasis added)
The Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors, Georgia Laws 1937-38, Extra Session, page 103, Georgia Code Annotated Chapter 58, has certain tax aspects. However, those provisions of the Act concern the licensing of persons to engage in the liquor business and are exercised under the police powers of this State rather than the Revenue powers. The Supreme Court of this State, in the case of Owens v. Rutherford, 200 Ga. 143 1945, stated that the business of selling intoxicating liquors is not per se lawful, but becomes permissive only where the County elects to come under the Act. The Court stated, at page 149:
"The licensing of such a business is in the exercise of a police power."
My opinion that the applications for licenses made under the provisions of this Act are not confidential, but are public records, is strictly limited to these records and I am making no expression at this time concerning any other reports. documents, or papers required by the Department of Revenue. It is my opinion that the application itself is a public record and is not confidential or secret.

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June 21, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
Returned herewith is a copy of the proposed contract to be entered into between the State Board of Pardons and Paroles and the Institute of Law and Government of the University of Georgia Law School. At your request I have reviewed the terms and conditions of the contract.
The 1943 Act which created the State Board of Pardons and Paroles established as its sole function the handling of paroles, pardons, and all matters relating to executive clemency. Georgia Code Ann. 2-5901 provides statutory authority for state institutions to contract with each other provided such contracts shall deal with such activities and transactions as the institutions are by law authorized to undertake. For these reasons, it is my conclusion that the proposed contract is in proper form and within the authority vested in the State Board of Pardons and Paroles.
Among the duties to be performed according to the provisions of this contract by the Institute is the submission of proposed legislation as prepared by the Institute's technical and consultative staff or by research and consultative agencies. Inasmuch as 77-507 provides that the Attorney General shall be the legal advisor of the Board and appropriate budget regulations pursuant thereto forbid the employment of any other legal advisors, it is possible that a strained construction of this contract would lead to the conclusion that legal services are being acquired. However, it is my opinion that such a construction would be erroneous in that the contract, read as a whole, will provide services of a general nature which will aid the Board in the furtherance of its duties, and does not constitute the establishment of an unauthorized attorney-client relationship.
June 24, 1963
OPINION TO THE REVENUE DEPARTMENT
I am pleased to acknowledge receipt of four letters from you requesting my official opinion as to the taxability under the Sales and Use Tax Act of monies paid under contracts between four motor freight carriers and independent contractors. One of your letters relates to Refrigerated Transport Co., Inc.; another to Harper Motor Lines, Inc.; another to Superior Trucking Company, Inc.; and another to Watkins Motor Lines, Inc. In each case, you accompany your letter with a sample copy of the contract used by the particular carrier in question. After carefully reading each of these contracts, I conclude that they are sufficiently identical in substance so as to present .the same factual situation. For that reason, this opinion covers the contracts of all four carriers.
The question concerning these contracts apparently arises as a result of the recent decision of the Court of Appeals in Oxford v.

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Blankenship,, 106 Ga. App. 546 (1962). In that case, the taxpayer leased a truck-tractor to R. F. Truesdale, Inc. in consideration for a stated percentage of the transportation charges to be derived from the transportation of goods in the leased equipment. The taxpayer conceded that the arrangement was a lease, for as stated by the Court, he had paid the sales tax due on so much of the transportation charges as were derived from wholly intrastate shipments. The taxpayer's principal contention was that the "imposition of the sales tax on that part of the lease receipts derived from the use of the leased vehicle in interstate commerce would constitute a burden on interstate commerce and is therefore within the exemption created by Georgia Code Ann. 92-3406a which provides that it is not the intention of the sales tax act to levy a tax on bona fide interstate commerce." (p. 547).
The Court rejected this contention, declaring that the sales tax was imposed as an excise upon the act of executing the contract of lease, which was an act performed wholly within the State of Georgia.
The present problem involves the applicability vel non of the Blankenship decision to a somewhat different factual situation. In this case, the owner of the motor equipment, referred to as the "contractor" enters into a written agreement with a motor common carrier whereby the former furnishes equipment and personnel and agrees to perform transportation services as directed by the carrier. The contractor selects, employs, compensates, supervises and discharges the employees engaged in operating the equipment. The contractor is responsible for all repairs to the equipment, and pays for all fuel, mileage and other taxes, and is obligated to keep all necesary records. The contractor makes the choice of routes, determines the number of drivers and helpers, rest stops, procures workmen's comp'ensation and other insurance coverage, and in the words of the sample contract, determines the "method, means and manner of performing this agreement and shall be responsible to carrier for the proper performance thereof in accordance with all applicable laws, ordinances, rules and regulations of every kind whatsoever." In addition, the contract specifically declares that the relationship created thereunder is that of carrier and independent contractor and not that of employe1 and employee.
In consideration of his services, the contractor receives a stated percentage of the revenues received from the transportation of goods.
At the outset, we begin with the basic proposition that a rental or lease of personal property is subject to the tax. Georgia Code Ann. 92-3402a (c), 92-3403a (B) and (C). And see, as to truck rentals, Ops. Att'y Gen. 845 (1954-56) ; Ops. Att'y Gen. 321 (1957) ; Ops. Att'y Gen. 242 (1952-53). On the other hand, except as to specific instances not applicable here, services are not subject to the tax, for the law declares that the terms "sale at retail," "use," "Storage" and "consumption" shall not include "... Professional, insurance, or personal service transactions which involve sales as inconsequential elements for which no separate charges are made ... " Georgia Code Ann. 92-3403a (C) (2) (a).

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Analytically, if inquiry be pursued to the limit of its logic, it might be said that every lease or rental involves some element of service, while every service involves some utilization of personal property. But here as in all cases, the law does not deal in absolutes, for the Legislature has, by employing two concepts differing in their consequences, manifested its intention that a line is to be drawn somewhere separating the areas of taxability and non-taxability.
Where the sale or use of materials is only incidental to and a part of the service rendered, the tax does not apply. Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360, 365 (1952) ; Kellogg Switchboard & Supply Corp. v. Department of Revenue, 14 Ill.2d 434, 153 N.E. 2d 45, 47 (1958). In determining whether the materials are "incidental to the service rendered, it is immaterial that their value is substantial in relationship to the value of the services, for the controlling consideration is still the principal purpose of the overall transaction." Craig Tourial Leather Co. v. Reynolds, Supra; Ball, "What is a Sale for Sales Tax Purposes ?,"9 Vand. L. Rev. 227, 234 (1956).
On the basis of the foregoing, I am of the opinion that the contracts in question, properly construed, contemplate the furnishing of services rather than the lease or rental of personal property. The equipment is merely incidental to the furnishing of the service, which is the dominant consideration. In the Blankenship case, the arrangement was a lease pure and simple, and the taxpayer did not contend otherwise. Here, on the other hand, the equipment involved is only one small part of the undertaking. Here, the contractor is to be deemed the consumer, and is only required to pay the sales tax on his equipment upon purchase in this state. Georgia Code Ann. 923448a.
My holding is further supported by administrative regulations adopted by tax officials in the State of Tennessee, after whose sales tax law ours was patterned. See, State v. Cherokee Brick & Tile Co., 89 Ga. App. 235, 242 (1953).
Rule 32 (e) of the Tennessee regulations declares:
"If the owner of the property maintains continuous supervision over the personal property being rented or leased, and furnishes an operator or crew to operate such property, he is rendering a service, and the same is not subject to the.sales and use tax." (Prentice-Hall, State & Local Tax Service, 21,541).
Where a statute has been adopted from another state, the construction placed thereon is persuasive as to the meaning here, Tamiami Trail Tours v. Georgia Pub. Serv. Comm., 213 Ga. 418, 424 (1957), and while the courts have the ultimate responsibility in interpreting a statute, the construction placed thereon by administrative officials charged with executing it is entitled to great consideration. Howell v. State, 71 Ga. 224 (2C) (1883) ; Elder v. Home Building & Loan Assoc., 188 Ga. 113, 116 (1938); Thompson v. Eastern Air Lines, 200 Ga. 216 (1946) ; Carter v. Oxford, 102 Ga. App. 762 (1960).

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The ruling herein made is also in accordance with my prior ruling of December 10, 1952, in which I stated:
"Where the owner of a bulldozer furnishing earth-moving services is at all times in complete control and direction of the machine, said transaction constitutes merely the rendition of personal services and is not a leasing of the property so as to be subject to payment of the state sales tax." Ops. Att'y Gen. 236 (1952-53).
In that opinion I further declared: "The contract would continue to be a personal service transaction irrespective of the machinery and equipment which the party may use in performing the work. Whether the contractor uses a pick and shovel or a bulldozer would not change the nature of the transaction, neither would it change the transaction whether the charge made was a lump sum fee, a per day basis or a rate of such per cubic yard of earth moved." (ld. at pp. 237-8).
The law was subsequently amended in 1955 specifically to cover such "machinery" as bulldozers, Code 92-3448a, but this merely serves to emphasize the vitality of the principle as applied to the type of tangible personal property involved here, which the first paragraph of 92-3448a declares is taxable in the hands of the contractor as the consumer upon its initial purchase.
In conclusion, I should say that merely because a particular arrangement is denominated a "contract" rather than a lease is not necessarily controlling. Just as is the case with respect to pleadings, it is the substance of a document, and not just the name given it,. which determines its legal character. Stanley Home Products, Inc. v. Lucas, 107 Ga. App. 260, 263 (1963). It likewise follows as a corollary that merely because a given document be designated a "lease," it does not necessarily mean that the proceeds paid thereunder are taxable. Here, as in the first instance, the substance controls as determined from the instrument as a whole. An arrangement may well be a "lease" under one law, e.g., regulation by federal and state agencies, and of an entirely different character under other laws. different in their effect, purpose and application, viz.:
"But it is not necessarily true that income means the same thing in the Constitution and the act. A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Holmes, in Towne v. Eisner, 245 U. S. 418, 425, 38 Sup. Ct. 158, 62 L. Ed. 372 (1918).
However, I do hold that under contracts such as you have submitted, the resulting legal relationship for purposes of the sales tax law is that of a contract for personal services and not that of a rental or lease. It therefore follows that payments thereunder are not. subject to the tax.

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June 24, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
This will acknowledge receipt of your request for direction as to the payment of the registration fee incurred by Board Members in attending the Georgia Probation and Parole Association's Sixth Annual Conference.
After careful study, I have been unable to find any limitation upon the payment of a registration fee for attendance at a conference in connection with the performance of your official duties as Members of the State Board of Pardons and Paroles. The only area where there is doubt is when the registration fee in fact becomes the payment of tuition. In such an event, the tuition could not be paid by the State in that it would come within a separate and entirely different category.
Insofar as is relevant, Georgia Code Ann. 77-503, provides:
"plus transportation fare and per diem if travel is made by railroad or bus, or the regular mileage fee fixed by this chapter where private car is used in the performance of official duties."
The 1961 Appropriations Act (Georgia Laws 1961, p. 356), 31, at page 377, provides:
"Pardons and Paroles, State Board of -
For cost of operating Board --------------------------------$320,000.00."
There are no restrictions nor limitations placed in the Appropriations Act in regard to the expenditure of funds for travel and other necessary expenditures incurred in the performance of your duties.
To my knowledge there has never been any specific statutory authority for the payment of expenses incurred in the performance of duty other than mileage. Georgia Code Ann. 40-2003, specifies the mileage allowance provided for State officials. You will recall that Georgia Laws 1962, page 710, is the latest expression by the General Assembly of the mileage payable while traveling in the service of the State, and that Act provides that the mileage rate is 8 per mile except as otherwise provided in the General Appropriations Act.
With this in mind, it is submitted that the registration fee is a proper item for expenditure by the State as reimbursement for expenses incurred in the performance of your duties. The proposition that only one registration fee is payable appears to be without support in that if there is authority for the payment of one fee, there would also be authority for the payment of the fee of another Member, particularly where the expense was incurred in the performance of his duties. To illustrate, it would seem appropriate for the Attorney General to designate and require the attendance of any number of the employees of the Department of Law at a meeting or conference where a registration fee was required and that the repayment of the registration fee to each such employee would be proper.

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As mentioned earlier, there are certain implied powers incident to any public office, and it would appear that absent statutory prohibition, there is implied authority to make the necessary expenditures incident to the fulfillment of the duties of that office. With this in mind, it would appear that it would be legitimate and proper for each Board Member to claim the cost of the registration fee incurred in the attendance of the conference.
June 25, 1963
PUBLIC FUNDS
I have a copy of your letter inquiring as to an alleged claim against the State of Georgia arising out of the sale of certain property in Catoosa County, Georgia.
You stated that in July of 1959, the Highway Department took part of a farm in Catoosa County, and the Assessor's award amounted to $17,000.00. The award was paid into court and withdrawn by the condemnee and his attorney. Subsequently, the State appealed the case and it was tried in December of 1961 before a jury and the award was reduced from $17,000.00 to $8,000.00. The attorney continued to represent the Condemnee and, according to the Condemnee, advised him that he would obtain a new trial of the case.
No new trial was sought within the time allowed by law and no appeal was perfected from the verdict of the jury. Subsequently, the State obtained judgment against the Condemnee and advertised his farm for sale but the attorney, according to the Condemnee told him it would not be necessary for him to attend the sale. The State bought in the property for the amount of its judgment plus interest and accrued costs. In May of this year the State sold the farm at auction and the Condemnee's brother bought it in for $16,000.00, the high bid, in an affort to salvage something for his brother.
You further state:
"I realize that the Condemnee has no legal claim upon the funds, but in view of the treatment he received from his attorney and in view of his condition, I hope the State of Georgia can and will see fit to pay the excess of funds received from the sale of his farm back to him, or to his brother for him, as he is very much in need of funds, and that the amount involved is $2,683.75."
The Constitution of the State of Georgia is very clear as to the purposes for which taxes may be levied. They are enumerated in Article VII, Sec. II, Par. I (Georgia Code Ann. 2-5501).
Article VII, Sec. I, Par. II of the Constitution, subparagraph 1 (Georgia Code Ann. 2-5402) provides:

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"The General Assembly shall not by vote, resolution or order grant any donation or gratuity in favor of any person, corporation or association." (Emphasis added)
The Supreme Court of Georgia in the case of Washburn v. MacNeill, 205 Ga. 772 1949, held:
"A resolution of the General Assembly which seeks to refund payment already made ... is null and void as violative of Article VII, Sec. I, Par. II, Sub-paragraph 1 of the Constitution. . . ."
Further, Article VII, Sec. II, Par. III of the Constitution (Georgia Code Ann. 2-5503) provides in part:
"and shall be appropriated therefrom, as required by this Constitution, for the purposes set out in this Section and for these purposes only."
I regret to advise you that, notwithstanding the extenuating circumstances outlined in your letter, the above provisions of the Constitution prohibit the expenditure of funds for the purposes stated in the information you submitted.
June 25, 1963
OPINION TO THE GOVERNOR
I have for acknowledgment your letter in which you request my advice as to whether the Adjutant General, as Director of the Defense Department, would be authorized to purchase and maintain an airplane from funds allocated to the Defense Department.
Section 86-312, of the Georgia Code Annotated, provides in part as follows:
"Purchase and issue of military property.- a. Under the direction of the Governor the Adjutant General shall authorize the purchase of such military property as may be required for the use of the organized militia. In extreme emergencies, however, the commanding officer of any force of the organized militia on active service may purchase such necessities as are required for the immediate use and care of his command. A report of such purchases shall be made forthwith to the Adjutant General ...."
It is my opinion that should the Adjutant General advise you that an airplane is required for the use of the organized militia that you would be authorized to direct him to make said purchase.
The Department of Defense is defined in 86-201 of the Georgia Code Annotated, as follows:
"Department of Defense. - There shall be an agency of the State government to be known as the Department of De-

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fense of the State of Georgia, which shall be composed of the military agency as provided in the laws of this State, and the civil defense agency as provided in the laws of this State. The Adjutant General shall be the executive head of the Department of Defense. The term 'Department of Defense' shall indude the term 'Department of Public Defense' whenever the latter appears in the laws of this State. (Acts 1955, pp. 10, 23.)" Section 86-203 provides :
"Administration of militia; compensation of employees; rights under merit system.- The militia of the State shall be commanded and its affairs administered pursuant to law by the Governor, as commander-in-chief, through the Department of Defense and the Military Division thereof, which shall consist of the Adjutant General, two Assistant Adjutants General and such other officers and such enlisted personnel and civilian employees as the Adjutant General shall from time to time prescribe: Provided, however, that nothing herein shall be construed to prejudice the status under the merit system of the State of any person employed in the Military Division, Department of Defense. Such other officers and such enlisted personnel and civilian employees shall perform such duties as may be required by the Adjutant General, and he shall fix their compensation, subject to the provisions of the merit system of the State. (Acts 1955, pp. 10, 23.)"
Since the militia of the State is a part of the Department of Defense of which the Adjutant General is the executive head, it is my opinion that the Adjutant General as Director of said Department, would be authorized to purchase and maintain an airplane from funds allocated to the Defense Department pursuant to the aforesaid code sections and upon your direction.
June 26, 1963
OPINION TO THE PURCHASING DEPARTMENT
This is in reply to your letter enclosing Requisition Number 188B, dated June 25, 1963, concerning the proposed purchase of one 1963 Model Beechcraft Super H-18S, for the State Department of Defense. You request my opinion as to the legality of such proposed purchase.
In my opinion, such proposed purchase is legal as I find no prohibition against this purchase. This airplane, of course, must be used only on State business.
June 26, 1963
JURIES
You stated you are involved in the preparation and prosecution of certain cases dealing with the Georgia Security Act. You asked my

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assistance in interpreting 14 of the Act as amended by Georgia Laws 1959, p. 89, as you are preparing a Request to Charge and are uncertain as to what is intended. The section to which you make reference is unofficially codified in Georgia Code Ann. as 97-9901 and reads:
"Penalties for violation of Georgia Securities Act. - Any person who shall wilfully violate any provision of Chapter 97-1, the Georgia Securities Act, or who shall engage in any act, practice or transaction declared by any provision of such Chapter to be unlawful shal be deemed guilty of a felony and upon conviction thereof shall be punished by a fine of not more than $5,000 or imprisonment for not less than one and not more than five years, or both, as the jury may recommend. Nothing in this Chapter or Chapter 97-1 shall limit any statutory or common law right of the State to punish any person for violation of any provision of any law."
As you noted, the difficulty stems from the phrase "as the jury may recommend." A literal interpretation would be that the jury could recommend both imprisonment (setting maximum periods of confinement within limits of not less than one nor more than five years) and imposition of a fine not to exceed $5,000. The language differs from that normally found in the felony clause of the various acts which set imprisonment or fine or both. Typical verbiage is "in the discretion of the court" (see Georgia Code Ann. 5-9902), or such words as "provided by law" (see Georgia Code Ann. 40-9905), or, as in the case of misdemeanors, "shall be punished as prescribed by Section 27-2506" (Georgia Code Ann. 13-9937).
I can find no cases which have been decided under this law as amended, although there are at least two appellate decisions concerning sentences under the law as it read prior to being amended. (See Curtis v. State, 102 Ga. App. 790 (1960) and Lee v. State, 103 Ga. App. 161 (1961). Nor can I find any similar Code section under which any decision has been rendered. Thus it seems there is no direct precedent from which we may take direction.
As you are well aware, the sentencing laws of Georgia provide, in Georgia Code Ann. 27-2501, for the recommendation of a jury that a crime being a felony as listed therein shall be punished as a misdemeanor if such recommendation is approved by the presiding judge. Also, if the judge deems proper he may, in fixing the punishment, reduce such felonies to misdemeanors. Sections 27-2502 and 27-2526 both are very clear in providing:
"The jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, and the judge in imposing the sentence shall sentence said convicted person to the penitentiary in accordance with the verdict of the jury."
Section 27-2502 additionally allows the judge to suspend or probate such sentence as he thinks proper.

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Although it seems unusual that the jury be directed and authorized to impose a fine, I know of no constitutional or other prohibition against such a practice if authorized by the legislature. If the legislature in its considered judgment deemed it advisable that, in addition to specifying the minimum and maximum terms of imprisonment, the jury should also have authority to impose a fine not to exceed the statutory amount, then this would seem proper. It is therefore my opinion that the liberal interpretation is the correct one.
There being an absence of any judicial precedent which we might follow, it is my considered opinion you would be clearly within the statute and within the bounds of proper criminal procedure in requesting that the judge charge the jury within the wording as it appears, making it clear that the jury could recommend imposition of both imprisonment and a fine. It is well established that any charge that is in the words of the statute is of course correct and upon any appeal from any conviction I believe would withstand attack.
June 27, 1963
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
In your letter you enclosed a membership file concerning a presently retired member of the Employees' Retirement System who was retired by reason of involuntary separation on November 1, 1962. After retirement, he subsequentaly contacted you on June 11, 1963 inquiring as to the possibility of his working with a city police, county police or sheriff's department, or any police organization in order to complete the required number of years of service that would entitle him to retirement benefits from the Peace Officers' Annuity and Benefit Fund, without relinquishing his present benefits from the Employees' Retirement System. You have asked that we give you our opinion whether the retirement allowances to which he is presently entitled, and is drawing, could be payable during such a period of employment as contemplated by the retired member.
I have examined the Employees' Retirement System Act closely and find only one sub-section which I feel might concern itself with the problem which you have presented. I make reference to 5 (1) (c) which was amended by Georgia Laws 1957, pp. 283, 285, and by Georgia Laws 1962, pp. 54, 56, and may be found in Georgia Code Ann. 40-2505 (1) (c). That sub-section reads in part:
"Anything in this Chapter to the contrary notwithstanding, after a member retires, should he accept employment from any State department or any agency which is supported in whole or in part by State funds regardless of the source of such funds, the payment of his retirement allowance shall be suspended during such time of employment, and further contributions to the retirement system shall not be made by him

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nor by the State on his behalf, provided, upon separation from State employment, for any cause, all rights shall be vested in said member the same as if he had continued under his option to retire."
I am of the opinion the sub-section would not cover a situation such as presented by the retired member unless there were some additional information to that given which disclosed the enforcement agencies to be "supported in whole or in part by State funds." I do not believe the legislature intended that the restrictions of that section should extend to employment by a county or city police force, nor do I think it would apply to employment as a deputy by a sheriff who is compensated entirely by the fee system. The restriction seems aimed at State departments and State agencies, or quasi-state agencies, which are supported by moneys contributed by or through the State of Georgia. Therefore, it is my opinion the retirement allowances could be payable during a period of employment as was proposed by the retired member.
June 27, 1963:
OPINION TO THE SECRETARY OF STATE
This will reply to your letter requesting that the duties of the Joint Secretary, State Examining Boards, in relation to the Board of Dental Examiners of Georgia, be defined. You specifically ask,. since the creation of the office of the Joint Secretary, if the Dental Board (or any of the other Examining Boards) has the right to designate one of its members to act as Secretary of the Board, whether designated as Recording Secretary, or otherwise.
The original Act creating the Boards of Dental Examiners, (Georgia Laws 1920, p. 132) contained the following provision:
"Section 2. Be it enacted by the authority aforesaid, that the Board of Dental Examiners of Georgia herein created shall have the following officers elected by the Board from its members, to-wit: a President and Secretary and Treasurer and such other officers as the Board in its discretion may elect, provided, however, that the office of Secretary and Treasurer shall be filled by the same person."
In 1931 the State Government Reorganization Act was passed,. and the office of the Joint Secretary, State Examining Boards, was created. (See Georgia Laws 1931, pp. 7,35). The Act provided in Article 8, 89, that:
"The Secretary of State is hereby authorized and directed to appoint one Secretary to serve as such for the several Examining Boards, to-wit:
1. State Board of Veterinary Examiners. 2. State Board of Examiners of Public
Accountants.

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3. State Board of Pharmacy. 4. State Board of Osteopathic Examiners. 5. State Board of Examiners of Nurses. 6. State Board of Optometry. 7. State Board of Embalming. 8. State Board of Medical Examiners. 9. State Board of Chiropractic Examiners. 10. State Board of Dental Examiners. 11. State Board of Barber Examiners. 12. State Board of Examination and Registration
of Architects. 13. State Board of Bar Examiners. 14. Stationery Engineers and Firemen. 15. The Georgia Real Estate Commission.
"The office of said Secretary to be maintained under the supervision of said Secretary of State. The offices of Secretary for said respective boards are hereby abolished. It shall be the duty of the Joint Secretary provided for herein to bring together and keep all records relating to the said several examining boards; to receive all applications for licenses; with the .consent of the board concerned; (sic) to schedule the time and place for examination; to issue certificates upon authority of the examining board concerned; to collect all fees now required 'by law in connection with licensing of trades and professions, and to remit the same to the State Treasurer. The expenses and salary of the Secretary and the expenses incidental to the -work of his office shall be paid out of the fees remitted to the State Treasurer. That all persons practicing the professions ,enumerated herein shall be required to register annually with said Secretary upon blanks furnished by said Secretary for .such purpose. And provided further, that said Secretary shall notify the tax-collectors in each of the counties of this State of the names of the persons so registered with him for the practice of their profession or professions in those particular or respective counties."
This Act is unofficially codified as 84-101 of the Georgia Code .Annotated.
In view of the language contained in the Reorganization Act of 1931, I am of the opinion that the office of Secretary in the fifteen Boards enumerated was abolished and that all secretarial duties and functions for each of said Boards enumerated under the duties of the Joint Secretary in 84-101 are transferred to, and are the responsibility of, the Joint Secretary.
While the Board has authority under 84-704 to elect from its members a President and such other officers as the Board in its discretion may see fit, I am of the opinion that any application filed with or communication addressed to "such other officer" as the Board in its discretion has seen fit to elect has no legal status, since the Statute (84-101) clearly imposes upon the Joint Secretary the duty "to bring together and keep all records relating to the several Boards;

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to receive all applications for licenses; to collect all fees required by law, and to remit same to the State Treasurer."
June 27, 1963.
COSMETOLOGY
This will reply to your letter in which you ask if you do not renew your teacher's certificate under the Cosmetology Act or pay the renewal fee of $25.00 for the year beginning July 1, 1963, (thus permitting your teacher's license to lapse) could you be required to pay the examination fee of $35.00 and to pass another teacher's examination at some later date if you then decided to renew your teacher's license.
The pertinent portion of 12 of the new Cosmetology Act (Georgia Code Ann. 84-4412) reads as follows:
"The Board shall have the same power and authority as to rules, regulations and inspection as to sanitary conditions over beauty schools, colleges or schools of cosmetology as it has over beauty shops and beauty salons. All such signs above referred to shall also display the words "Service by Students Only." Where service is rendered by students, no commission or premium shall be paid to such student for work done in said schools or colleges, nor shall any person be employed by such schools or colleges to render profesflional service to the public, and all teachers or instructors shall devote their entire time to instruction of students: Provided, further, that any person desiring to teach or instruct in any beauty school, college or school of cosmetology shall first file his or her application with the Joint-Secretary, State Examining Boards, to the Georgia State Board of Cosmetology for examination, and shall pay to the Joint-Secreary of the Examining Board, together with his or her application, the sum of thirty-five ($35.00) dollars as examination fee, and, upon said examination, shall satisfy the Board that he or she holds a current Master's license and also holds a dipolma or certificate of fifteen hundred (1500) hours from a recognized school and pass an examination satisfactory to the Board: Provided further, that any teacher or instructor shall renew his or her license each year by remitting with application a renewal fee of twenty-five ($25.00) dollars: Provided, further, that any teacher or instructor who fails to renew his or her master's license as a cosmetologist on or before the 31st day of December of each year, his or her license to teach or instruct shall be automatically revoked; . . ." (emphasis supplied)
While the language quoted from 12 is ambiguous and confusing, I am of the view that an instructor, once qualified, is required to renew the instructor's license by paying the renewal fee of $25.00 each year so long as the instructor is engaged in teaching, and in

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addition must keep his or her Master Cosmetology license renewed at all times; otherwise, if the Master Cosmetologist license is allowed to lapse, the instructor's license will be automatically revoked.
In a case such as your own, where apparently you do not plan to teach next year, it is my opinion that you must keep up your Master license, even though your instructor license may become dormant for a period of time, and that upon renewal of your instructor license you would be required to pay only the $25.00 renewal fee and satisfy the Board that you hold a current Master Cosmetologist license (and have held such license for three years). Since you qualified for a teacher certificate under the old law, the requirement of having 1500 hours training in a recognized school would not apply. Neither am I of the opinion that you would be required to submit to a new examination, nor to pay the $25.00 renewal fee for a teacher's license for the years you did not teach.
It appears to me that the fee for a teacher's certificate is for the privilege of teaching and does not touch upon the question of qualification to teach. 'l'he qualification for a teacher's license is holding a current Master Cosmetologist license and having held such for three years; and in addition, under the requirements of the new law, having 1500 hours of instruction in a recognized school or college.
June 28, 1963
OPINION TO THE DEPARTMENT OF STATE PARKS
This is in reply to your letter in which you request my opinion as to whether the Department of State Parks may legally enter into a contract with Knox Mobile Homes of Thomson, Georgia, for the purchase of 45 mobile trailers for use at Georgia State Parks.
You state in your letter that this purchase may be prohibited by State law s_ince Mr. P. S. Knox, Jr., is President of Knox Homes Corporation, of which Knox Mobile Homes is a division, and he is also serving at present on the Industry and Trade Advisory Board.
The question presented by you is governed by the provisions of the "Honesty Acts" of 1956 and 1959. The provisions of the 1956 Act set out in Georgia Laws 1956, p. 60, provide in 1 as follows:
"It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purehase or sale would benefit or be likely to benefit such official or employee. Nor shall any full-time appointive State official or employee influence, or attempt to influence, the execution of any contract, agreement or transaction entered into by the State of Georgia, or any department, agency, commission or authority thereof, for the purchase or sale of any real or personal property, goods or services,

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or a combination thereof, where such action would result in actual ascertainable pecuniary or other gain to such official or employee."
Section 2 of the 1956 Act provides:
"No member of any State board, bureau, commission or other State agency by whatever riame called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon."
Section 3 of the 1956 Act states:
"No member of any State board, bureau, commssion or other State agency by whatever name called, or of any authority created by law, shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, unless such person operates a regularly established business enterprise which, when selling such goods or services, or both, to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of goods or services, or both, and all other requirements in connection with such transactions."
Section 4 of the 1956 Act provides as follows:
"No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member."
It appears that the prohibitions set out in the above quoted Sec-tions of the 1956 law would not prohibit the Department of State Parks from purchasing trailers from Knox Mobile Homes.
The prohibition in 1 of the Act is against "any full-time appointive State official." Mr. Knox is, of course, not a full-time appointive State official since he pursues his usual and private business activities while the Industry and Trade Advisory Board does not meet. The prohibitions set out in 2 and 3 of the Act are against any member of any State board acting in his official capacity as "dealer, agent or broker, or in any other manner, in connection with the sale of goods or services" to the State. These sections do not prohibit proposed purchase since Mr. Knox is not entering into any transaction with the State of Georgia in his official capacity for the sale of goods or services to the State. In fact, it appears from your letter that the Department of State Parks is doing business with a corporation and this situation does not involve a transaction with the State prohibited by said provisions of the 1956 Act.

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As to the prohibition set out in 4 of the 1956 Act, I have previously ruled on April 14, 1961 (Ops. Att'y Gen. 577 (1960-61)) that a Corporation may submit a bid on management of apartments for the Board of Regents even though a member of the Board of Regents is a Director of the Corporation. This section prohibits persons from contracting with a State agency. In the section in question, the Corporation is obviously not a member of any State board, bureau, commission or other State agency.
The 1959 "Honesty Act" set out in Georgia Laws 1959, p. 35, 2, provides as follows :
"Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
The above stated 2 of the 1959 Act does not cover the transaction for the purchase of the trailers as set out in your letter. Georgia Laws 1962, p. 696, 4 state as follows:
"Section 4. The members of the board shall receive no compensation for their services, but shall be entitled to receive actual expenses incurred by them in the performance of their duties. Said expenses, including mileage, shall be paid on the basis as for other State officials and employees."
As a member of the Industry and Trade Advisory Board, Mr. Knox is reimbursed only for actual expenses incurred and does not receive per diem or compensation. Since the 1959 Act prohibits State transactions with any State official who receives compensation or per diem, clearly this proposed transaction would not be violative of the provisions of that Act.
If this proposed purchase were not allowed as being violative of the above quoted Honesty Acts, even the remotest connection or association that any State employee has with any corporation could be included within these Acts and would render the operation of State government practically impossible. This was obviously not the intent of the General Assembly when they passed the legislation.
In view of the above, it is my opinion that the Georgia Department of State Parks may enter into a contract with Knox Mobile Homes of Thomson, Georgia, for the purchase of the forty-five mobile trailers.

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June 28, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your request for an opinion on whether Georgia Kraft Company is liable for ad valorem taxes on 325 acres of land leased for 20 years to the Georgia Forestry Commission.
It is my opinion that Georgia Kraft Company is liable for ad valorem taxes, but only on its reversionary interest in the land.
After examining the instrument of conveyance, it is clear that an estate for years was conveyed to the Forestry Commission. Such an interest is realty and created a leasehold and is not merely an merely an interest in personalty or usufruct. An examination of the conveying instrument is often necessary in determing whether or not the instrument by its terms limits the interest passed to a mere usufruct. Warehouses, Inc. v. Weatherbee, 203 Ga. 483 (1948), Headnote 3a, citing Hutcheson v. Hodnett, 115 Ga. 990 (1901).
This leasehold, which would ordinarily be taxable under Georgia Code Ann. 92-114, is, however, public property and as such is exempt both by common law and statute. Newton v. Atlanta, 189 Ga. 441, 6 S.E.2d 61 (1939) ; Georgia Code Ann. 92-201.
In the light of the recent holding of the Supreme Court of Georgia in Delta Air Lines v. Coleman, No. 21988, decided on May 9, 1963, that
" A leasehold estate which one acquires in public property is subject to taxntion like any other privately owned property," it has been established that a leasehold shall be valued and assessed separately when public property is involved.
Conversely, it is consistent that the reversionary interest be valued separately when the positions of exemption are reversed.
Although the unusual and perhaps difficult problem of valuing and assessing the reversionary interest now arises, it must be done. This problem as it relates to the valuation of a leasehold was covered in the Delta case, supn.., the court saying :
"We find no Georgia case which prescribes a rule for fixing the fair market value of a leasehold for tax purposes, but as to such an interest in land, the rule of 'fair market value' should always be applied."
Further, the court said:
"The fair market value of land, whether it be the fee, a leasehold, or any other interest, is a question which necessarily addresses itself to the honesty, the experience and the familiarity with land values in a given locality of the person or persons whose duty it becomes to determine and fix it."

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July 8, 1963
OPINION TO THE JOINT SECRETARY STATE EXAMINING BOARDS
This will reply to your letter in which the State Board of Pharmacy asks for advice as to whether or not the members of the Board "have immunity from personal liability, civil and criminal, for their official acts."
The Act of 1927, as amended, creating the Georgia State Board of Pharmacy, codified as Chapter 84-13, of the Code of Georgia, is silent on the question submitted; however, I am of the opinion that the members of the Board do have personal immunity, civil and criminal, for their official acts in performing their duties as provided in said Chapter.
July 8, 1963
OPINION TO THE BOARD OF CORRECTIONS
I have received your letter in which you request a ruling on the use of prison labor in replacing a well made inoperable on right-ofway property.
Subparagraph (e) of 4 of Georgia Laws 1957, page 477, reads as follows:
"(e). The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of state or local government now or hereafter created by law, which are hereby authorized to so contract with the board, for the construction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor."
Included in your letter of request was a copy of a letter from Mr. Warren C. Fortson, County Attorney of Sumter County, in which he stated the problem as one of relocating the well from the right of way onto private property. If the relocation of this well is part of the consideration for the purchase of the right of way, then the relocation would be a contractual public function of the State thereby falling under the classification of "other public works" and the use of prison labor would be possible.

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July 8, 1963
AGRICULTURE
You raise several questions concerning the keeping of pigs and hogs and the spraying of cotton.
Your first question was: "Is there any law in Georgia against locating pig parlors and hogs, large numbers of which are confined in pens, and which give off strong odors, near dwelling houses in small unincorporated villages?"
Georgia has no law specifically dealing with the question which you raised. It may be, however, that the indiscriminate use of such hogs, such as stench, filth, etc. would constitute a nuisance. According to Georgia Code Ann. 72-101, "a nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance."
A nuisance is subject to abatement as provided in Chapter 72-2 of the Georgia Code Annotated. Generally this chapter provides for a public nuisance to be abated by the Solicitor General of the Judicial Circuit, and a private nuisance to be abated upon the application of the person injured. Your particular attention is directed to Chapter 72-201 which states:
"Any nuisance which tends to the immediate annoyance of the citizens in general, is manifestly injurious to the public health or safety, or tends greatly to corrupt the manners and morals of the people may be abated and suppressed by the order of any two or more justices of the peace of the county, founded upon the verdict of 12 freeholders of the same county, . . ."
Your second question was: "Is there any law against spraying 2-4D on corn close enough to your neighbor's cotton to damage his cotton?"
Georgia also has no statute dealing with this specific subject matter. However, the injured party upon showing negligence upon the part of the individual spraying 2-4D on his corn, could have a cause of action for damages. The "Georgia Economic Poisons Act" (Ga. Laws 1950, p. 390, as amended by Georgia Laws 1958, p. 389, and Georgia Laws 1960, p. 178), unofficially codified as Chapter 5-15, of the Georgia Code Annotated, regulates the sale and distribution of poisons. However, there is nothing in this section dealing with the use of such goods. It also may be that the indiscriminate use of such poisons would constitute a nuisance which could be abated as outlined in question number one.
July 8, 1963
EDUCATION
I am pleased to reply to your letter concerning the public school systems in Troup County. You state in your letter:

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"We understand that state law requires county school boards to open their meetings to the public. Here in Troup County, four separate school systems are in operation. We request a legal opinion as to whether the law applies to city school boards as well as county boards."
Ga. Const. VIII, VIII, para. 1 (Georgia Code Ann. 2-7101) provides:
"All official meetings of county boards of education shall be open to the public." (emphasis added)
This is a provision of the Constitution of 1945. County boards of education that received their charters prior to the Constitution of 1877, however, are unaffected by the provisions of the 1945 Constitution, since the 1945 Constitution provides in art. VIII, X, para. 1 (Georgia Code Ann. 2-7301):
"Public school systems established prior to the adoption of the Constitution of 1877 shall not be affected by this Constitution."
These provisions do not apply to independent school systems since they are excluded by the language contained in Georgia Code Ann. 32-1101, which provides:
"Pursuant to the amendment of the Constitution adopted in 1945, each county of this State, 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 the county board of education." (emphasis added)
I am unable to locate any constitutional or statutory provisions that indicate that a city school board must hold its meetings open to the public, therefore, I must assume that a city school board may hold closed meetings unless such closed meetings are prohibited by local ordinances or in the instrument by which a city school board is created. In this connection, I call your attention to art. VIII, VII, para. 1, (Georgia Code Ann. 2-7001) which provid,e..s--:
"Authority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general law, and such existing systems may add thereto colleges. No independent school systems shall hereafter be established." (emphasis added)
July 10, 1963
OPINION TO THE DEPARTMENT OF AGRICULTURE
You request opinion as to the eligibility of nursery men for motor fuel refunds under Georgia Code Ann. 92-1403 (I).

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Section 92-1403 (I) states:
"Any person, who shall purchase gasoline in quantities of 25 gallons or more at any time, and use said gasoline in operating tractors or other farm equipment used exclusively for agricultural purposes in farm operations ... shall be entitled to a refund of all of the State tax on such gasoline except 1 cent per gallon...." Georgia Laws 1946, page 19, as amended.
This proviso contemplates that any given taxpayer must meet all three conditions. First, that the gasoline be used to operate tractors or other farm equipment. Secondly, that the gasoline be used exclusively for agricultural purposes. And finally, that the gasoline be used in farm operations.
The Georgia Code contains seven statutory definitions dealing with agriculture or agricultural products. These definitions are found in Georgia Code Ann. 5-1617 (Naval stores and lumber); 5-2602(c) (Georgia Commodities Authority); 5-2903(a) (Georgia Agricultural Commodities Promotion Act) ; 65-201 (a) (Non-cooperative Associations); 65-302 (Georgia Market Authority); 111-502(d) (Georgia State Warehouse Act); and, 67-1107 (Mortgages and bills of sale covering crops) .
Each of these definitions is limited to the area in which it deals, and none of these definitions are controlling authority interpreting 92-1403 (I). Of these seven statutory definitions, only the definition found in 67-1107 purports to be a definition of general application. However, the case of Collins Tax Collector v. Miller, 198 Ga. 18 (1944), construed 67-1107, and at page 23 of the opinion, when speaking of this definition, the court said
"nor did any of them deal or purport to deal with taxation, or exemption from taxation." (emphasis added)
The case of Meadows v. Dixon, 61 Ga. App. 697 (1940), holds that the definition found in 67-1107 dealt only with security transactions. The case of Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544 (1956), uses the definition found in 67-1107 in a workmen's compensation situation. However, no case has ever used this section in a tax exemption situation, and the authority cited here shows that to use the statutory definition in 67-1107 in a tax exemption statute would be improper.
The refund provision in 92-1403 (I) was enacted in 1946. The Legislature in this act used the term "agricultural." The Legislature is presumed to have known the existing legal meaning of the term. The Legislature is presumed to have used the term "agricultural" with the same meaning which the law ascribed to it. Thornton v. Anderson, 207 Ga. 714 (1951). Indeed, a construction of the term "agricultural" must be given which is not in degradation of the common law. Heyman v. Heyman, 19 Ga. App. 634 (1917).
Section 92-1403 (I) is an exemption from taxation provision and as such must be strictly construed against the taxpayer. National

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Linen Service Corp'. v. Thompson, 103 Ga. App. 786. (1961). With these principles of construction in mind, we proceed to determine what types of operations the Legislature intended to receive these refunds under 92-1403 (1).
The early Georgia case of Da:vis and Co. v. The Mayor and Council of Macon, 64 Ga. 128 (1879), dealt with a tax situation wherein it was necessary for the court to define "agricultural product." The court at page 134 said
"And when it is thought of closely, would it not be rather an unusual application of the phrase 'agricultural products' to make it comprehend beef cattle? In ordinary usage, is not that phrase confined to the yield of the soil, as corn, wheat, rye, oats, hay, etc., in its primary form?" (emphasis added).
The case of Pridgen v. Murphy, 44 Ga. App. 147 (1931), gives a judicial definition of the word "farming" as follows:
"the word 'farming,' in its ordinary sense, signifies the culti:vation of land for the production of agricultural crop'S. . . ." (emphasis added)
(This case, dealing with turpentine products, was later reversed on other grounds. However, the definition of the word "farming" remains good law.)
The definition says that "farming" signifies the cultivation of land for the production of agricultural crops. If farming is the cultivation of land for the production of agricultural crops, we must then determine what are "agricultural crops." In this connection, see the case of Evans Marketing Agency, Inc., v. Federated Growers Credit Corporation, 175 Ga. 294, 299 (1932), which says
"Among many authorities on the subject we quote from the case of Sparrow v. Pond, supra, [Sparrow v. Pond, 49 Minn. 412, 52 N.W. 36 (1892)] in which the Supreme Court of Minnesota dealt with a case concerning 'crops,' and in the opinion said: 'At common law those products of the earth which are annual, and are raised by yearly manurance and labor, and essentially owe their annual existence to the cultivation of man, termed 'emblements,' and sometimes 'fructus industriales,' were, even while still annexed to the soil, treated as chattels, with the usual incidents thereof as to seizure on attachments during the owner's life, and transmission after his death. This class included grain, garden vegetables, and the like. On the other hand, the fruit of trees, perennial bushes and grasses growing from perennial roots, and called, by way of contradistinction, 'fructus naturales,' were, while unsevered from the soil, considered as pertaining to the realty, and as such passed to the heir at the death of the owner, and were not subject to attachment during his life...."
The case of Adcock v. Berry, 194 Ga. 243 (1942), specifically held that nursery stock is not "crops" where the plants, trees, and shrubs are of the perennial type.

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In summary, it may be said that in order to qualify for the refund, the claimant must be using the gasoline in the operation of tractors or other farm equipment which is used exclusively for agricultural purposes and farm operations. Therefore, to be entitled to a refund, the claimant must be engaged in agriculture. That is, tilling the soil for the production of "crops" as that term was defined at common law. These "crops" must be of the type which owe their existence to the cultivation of the land by the yearly labor of man. Perennial trees, bushes, and grasses do not qualify.
Applying a nursery type operation to the above-stated facts, it becomes obvious that the vast majority of nursery products would not qualify because they are perennial trees and shrubs. However, should a nursery man produce by tilling the soil an annual crop of plants which are not perennial (such as tomato plants), he would be entitled to the refund assuming he met all the other conditions of the statute. As to perennial plants and bushes, a nursery man would not be entitled to the refund under 92-1403 (I).
There is outstanding an opinion dated April 16, 1957, dealing with gasoline tax refunds to nurseries. Ops. Att'y Gen. 309 (1957). To the extent that that opinion is not superseded by what is said herein, it remains of force and effect.
July 11, 1963
FIREARMS
This is to acknowledge receipt of your letter in which you state that you have three guns (one pistol, one rifle, and one shotgun) and that it is your purpose to leave Florida and travel through Georgia, and would like to get a permit or the necessary permission to transport these guns through Georgia.
It is a violation of the law of this State for anyone to carry about his person a concealed pistol. The law provides that a person who desires to carry about his person a pistol in an open and exposed manner in full view may make application to the Ordinary of the County of his residence and obtain a permit to carry the pistol in an open manner.
I do not know of any law that requires a permit to carry a shotgun or rifle.
It is my opinion that if you placed the pistol in your automobile in Florida, say, in the package or glove compartment of your car, and travelled through Georgia with the pistol in the package or glove compartment of your car or any other part of your car, such act would not be a violation of the Georgia law, provided the pistol was not at any time in contact with your body.
It is further my opinion that you could carry your shotgun and rifle through the State of Georgia in your automobile and that such act would not be a violation of the Georgia law.

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July 12, 1963
INTANGIBLES TAX
You ask for an opinion concerning two cases involving modification of long term notes secured by real estate and the imposition of additional intangible tax on these notes.
According to your statement of the first case, there is a long term note secured by real estate on which the intangible tax has been paid. Recently, the creditor and the borrower have entered into an agreement extending the time for making periodic payments and lowering the amount of each periodic payment during the longer term, which will consist of the remainder of the term provided by the note and the additional term provided by the agreement.
If the facts in the case referred to constitute an extension, modification, or renewal of the original indebtedness or part thereof, represented by the long term note secured by real estate on which the intangible tax has been paid, it appears that no additional intangible tax will be due. See Georgia Code Ann. 92-175.
Your statement of the pertinent facts in the second case indicates the cancellation of a long term note secured by real estate on which the intangible tax has been paid and a new loan agreement between the same parties, evidenced by a long term note providing for an increase in the size and term of the loan. The latter note is secured by the same real estate as the former.
In an unofficial opinion of this office dated June 4, 1957, Ops. Att'y Gen. 307 (1957), dealing with a similar situation, we ruled that if a new note is executed in an increased amount covered by the same security as the old note, thereby cancelling and replacing the prior note, the tax will apply on the entire principal amount of the new note. Thus an additional tax on the entire amount of the new long term note is payable.
July 12, 1963
OPINION TO THE DEPARTMENT OF BANKING
This is in reply to your letter in which you request an opinion on the following questions:
1. Does a vacancy exist in the case where the stockholders of a bank elected ten Directors and subsequently one of the elected Directors failed to qualify by death or other reasons?
2. If so, is it mandatory that the Board fill such vacancy?
1. A vacancy does exist in the Board of Directors. Georgia Code Ann. 13-2001 provides that Directors shall hold office for one (1) year and until their successors are elected and qualified.

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Under the facts given, while an election had been held, the deceased Director had not qualified and entered upon his new term of office.
Section 13-2001 further provides that a bank, at the annual meeting of stockholders, notice of which is given in the notice of annual meeting, may, by resolution, fix or change the number of Directors. Under the facts given no such resolution has been adopted; therefore, it cannot be said that the remaining nine Directors constitute the legal Board of Directors.
2. The vacancy should be filled by the remaining nine Directors until the next annual meeting of stockholders. Section 13-2001 provides that vacancies occurring between elections shall be filled by the Board of Directors. Directors are elected at the annual stockholders' meeting.
July 17, 1963
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This is in reply to your letter in which you request my opmwn regarding the ownership of a bullet removed from a victim who has been shot either accidentally, with homicidal or suicidal intent, by a peace officer in the line of duty.
To my knowledge there have been no cases which have dealt with this point. If the victim chooses to claim ownership of a bullet removed from his body, he might rely upon a theory of abandoned property or, as you mentioned in your letter, argue that such bullet had become part of his body similar to an appendix. I express no opinion upon the merit of such argument. It is unnecessary in view of the fact that legal ownership has no bearing on the right and duty of a surgeon to turn such bullet over to peace officers.
It is stated in Crosby v. Potts, 8 Ga. App. 463 (1910), that every citizen can be compelled to testify where there is no exemption or privilege protecting the matter from disclosure. I am assuming from your letter that there is no question of privilege in the instant case. It is a well known rule that the testimonial duty extends beyond mere vocal utterance at the trial itself and extends to the exhibition of property owned by the witness. See, 8 WIGMORE, EVIDENCE 2216 (McNaughton Rev. 1961).
Therefore, it can readily be seen that although legal title may be in the victim, the peace officer has the right to claim the bullet if needed for evidence.
Other theories which might be used in upholding the right of a peace officer to demand the bullet are: (1) the discharge was illegal in the first instance, thereby making the gun and its projectiles subject to confiscation; and (2) there is a public right in a case of this nature which overrides the private right to immediate possession of property.

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Any of the above theories should substantiate the right of the peace officer to obtain the bullet from the surgeon and thereby absolve the surgeon from liability to the victim.
As concerns the right of an attorney to demand possession, I can find no authority for such a demand and would advise that he not be given the bullet.
July 17, 1963
FISHING
This will acknowledge your request for my unofficial opinion concerning Georgia Code Ann. 42-702 in conjunction with opinions found on pages 235 and 237 of the Ops. Att'y Gen. (1960-61).
Section 45-102 (e) defines "private pond" as "a body of water being wholly on or within the lands of one title, where the fish can not go up stream or down stream or to the lands of another."
Sections 45-702 provides: "The owner of a private pond, his family or tenants with the owner's consent, shall be permitted to fish within the bounds of said pond at any time and in any manner, without a fishing license."
Section 45-706 provides: "(a) Any person who shall place or cause to be placed in any of the waters of this State, except private ponds as herein defined, any trap, basket, nets, seines, or similar devices for the purpose of catching fish, except as specifically authorized by laws shall be guilty of a misdemeanor and punished as provided by law."
In view of these code sections it would appear that the use of seines, traps, and nets by the owner, his family or tenants with permission of the owner, in private ponds, as defined by the code, is not prohibited.
As regards your question of the ability of the owner, his family, tenants, and lessees to take fish by baskets, nets, and seining from non-navigable lakes opening, abutting, or adjoining the Ocmulgee River, 45-102 seems to hold the answer when it states, "the fish can not go up stream or down stream." Any opening that provides ingress and egress removes such body of water from the statutory definition of a private pond. In any body of water not so covered by such definition the use of traps, baskets, nets and seines is well covered in Georgia Code Ann. 45-706.
I refer you to Purvis v. Tippins, 193 Ga. 251 (1941) and Vickers v. Jones, 200 Ga. 338 (1946) in support of the above stated opinion.

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July 17, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This will acknowledge receipt of your request for an official opinion as to the amount of commission due the Crawford County Tax Receiver on corporation or public utility taxes.
Under the Act of the General Assembly, approved February 8, 1951, (Georgia Laws 1951, pp. 69, 70), tax receivers in all counties of the State having a population of not less than 5,975 and not more than 6,500, according to the United States census of 1950, or any future United States census, shall be paid from the ad valorem school tax collected for the county board of education a commission of twoand-one-half percent of the net amount collected.
The United States census for 1950 gives the population of Crawford County as 6,080 and the United States census for 1960 gives. the population of Crawford County as 5,816. Accordingly, it would appear that the Tax Receiver of Crawford County would not now be entitled to the commission authorized by the 1951 Act since the population of the County under the 1960 census was less than the number provided in the applicable Act.
July 18, 1963
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
I am pleased to reply to your letter requesting my official opinion concerning your action in appointing members of the Long County Board of Family and Children Services. You state in your letter:
"Pursuant to an Act passed at the 1963 session of the General Assembly, House Bill 562, relative to the appointment of County Boards of Family and Children Services, Mrs. Schaefer, the Director of the Department, did on April 25, 1963, write to the Honorable C. H. Baxter, Chairman of the Long County Commissioners, Ludowici, Georgia, requesting that names be submitted so that appointments to the Long County Board of Family and Children Services might be made pursuant to this Act. On June 27, 1963, we received from the Clerk of the Long County Commissioners, Mr. Richard Phillips, a letter written on the letterhead stationery of the Long County Commissioners of Roads and Revenues and bearing the seal of the Board of Commissioners of said County, in which letter recommendations were made, three names being submitted for each of the five places on the Board and the terms of the members thereof being designated pursuant to the above-mentioned Act.
"Subsequent thereto, Mrs. Schaefer advised the Chairman of the Board of Commissioners of Long County that it would be necessary to submit their recommendations on forms pre-

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scribed by this department which were previously transmitted to the Board.
"Pursuant to this request by the State Director, we received on July 2 from the Commissioners of Long County their recommendations on the prescribed forms signed by the Chairman. Appointments were made in accordance with these recommendations and commissions were issued.
"On July 9, we received from the Long County Commissioners a new recommendation signed in this instance by all five members of the Board of Commissioners of Roads and Revenues and certified by the Clerk. This list of recommendations was in accord with the previous list forwarded to us on June 27, 1963, which recommendations were certified by the Clerk and bore the official seal of the Board of Commissioners of Long County, but was not in accord with the recommendations which we had previously received bearing the signature of the Chairman only and without the seal of the Commissioners affixed thereto.
"The four members of the Board of Commissioners of Roads and Revenues of Long County have questioned the legality of the appointments of the Board, nominations to which were submitted to us by the Chairman on forms prescribed by us and bearing his signature. It is the contention of these four members of the Board and the County Attorney of Long County that these nominations were made by the Chairman of their Board inconsonant with the resolution unanimously adopted by the Board on June 27, 1963."
You then request my opinion with regard to the following questions:
1. Were the members of the Long County Board of Family and Children Services legally appointed?
2. Are they legally qualified to serve?
The Act under which you made the appointments is contained in Georgia Laws 1963, page 222. Section 3 of this Act provides:
"The provisions of this Act shall become effective as of July 1, 1963."
Therefore, any action prior to the effective date of said Act, either by the Commissioners of Long County or you, would be ineffective. I note that the appointments you made were in accordance with the recommendations of the Commissioners received by you on July 2, 1963. In Ross v. Jones, 151 Ga. 425 (1921), it was held in headnote one:
"The legislature may pass an act to become effective at some future date after its passage and approval by the Governor. Consequently, where the legislature passed an act which was approved on August 17, 1920 . . . reciting in section 1 that 'upon the passage and approval' of the act there should be appointed by the Governor an additional judge of the superior

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courts of the Macon Circuit for a term commencing on the date of the appointment, etc., and, where by section 11 of the act it was provided that 'This act shall not go into effect until November 1st, 1920,' the act became effective on the latter date; . . . The word 'upon' as used in the first section construed in connection with section 11 of the act means 'after.'"
Therefore, in view of the effective date of this Act, and of the decision in the case of Ross v. Jones, supra, it is my opinion that the members of the Long County Board of Family and Children Services were legally appointed, and that they are legally qualified to serve.
July 18, 1963
OPINION TO THE BOARD OF CORRECTIONS
I have received your letter in which you request a ruling on the use of prison labor in building a driveway across property owned by W. F. Bell to serve his home and tenant house.
Subparagraph (e) of 4 of Georgia Laws 1957, page 477, reads as follows:
" (e). The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of state or local government now or hereafter created by law, which are hereby authorized to so contract with the board, for the construction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor.''
Included in your letter of request was a copy of an agreement by W. F. Bell to sell certain property to the State of Georgia. The consideration he was to receive for the sale of the property was stated as a specific sum of money plus a condition that the State was to build a driveway across Mr. Bell's property and do certain other work. This condition appears to be a part of the consideration for the purchase price of the property. Therefore, the building of the driveway and the dredging of the shore line around the lake would be a function of the State on a contract to buy thereby falling under the classifi cation of "other public works" and the use of prison labor would not be illegal.
July 19, 1963
OPINION TO THE DEPARTMENT OF REVENUE
Reference is made to your request for an official opmwn with respect to the intangible personal property taxes owed if any, by a

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certain taxpayer on stock of the Franklin Life Insurance Company of Springfield, Illinois, and also ah opinion on whether or not that same taxpayer is a Georgia resident.
Section 92-162 of the Georgia Code Annotated imposes a property tax on the fair market value of all stocks in foreign corporations and all stocks in foreign domesticated corporations (except those exempted by the section). We would not think that the Franklin Life Insurance Company is so exempt.
Shares of corporate stock are considered intangible personal property which may be taxed to the individual owner in the State in which the owner resides, even though the corporation is a foreign corporation to such State.
Whether or not the taxpayer concerned is a resident of Georgia is a question of fact which we think the Property Tax Unit is authorized to resolve in favor of the State in view of her continued and admitted residence here for some ten years. The physical transfer of the share certificates outside the State, as suggested by her, would not affect her liability for the tax. (See Georgia Code Ann. 92-135.)
July 22, 1963
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
This is in reply to your letter in which you requested my opinion as to the legal residency status of Mrs. LeVonia S. Albury, a student at Georgia State College. Specifically, you request my advice as to whether Mrs. Albury is entitled to pay resident tuition fees or must continue paying nonresident tuition fees.
It appears from the information enclosed in your letter that Mrs. Albury has lived in the State of Georgia for twenty-two years with the exception of ten months during which time she lived in the State of Florida with her husband, a resident of Florida. Also, Mrs. Albury attended Andrew College in Cuthbert, Georgia, for two years and was accepted at Georgia State College as a transfer student. It further appears that her husband is a part-time student at Georgia State College and pays out-of-state tuition fees. Mrs. Albury and her husband have been employed full-time in Atlanta, Georgia, since March, 1963.
The Georgia law applicable in this case is found in Georgia Code Ann. 79-403, which states as follows:
"The domicile of a married woman shall be that of her husband, except in two cases: 1. Of voluntary separation and living apart. 2. Of a pending application for divorce. In either case her domicile shall be determined as if she were a feme sole."

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The above Code section makes it clear that when Mrs. Albury married, she assumed the domicile of her hubsand. Since her husband, at that time, was domiciled in Florida, it follows that Mrs. Albury was also domiciled in Florida. Also rule "e" of the rules and regulations adopted by the Board of Regents relative to the residence requirements necessary to be established before an applicant for admission to a unit of the University System is entitled to resident tuition fees, states:
"In every instance, a wife will assume the legal status of her husband."
In view of this regulation, established by the Board of Regents for the purpose of determining payment of resident or nonresident tuition fees, Mrs. Albury acquired the same legal status of her husband upon her marriage.
Also, under the rules and regulations of the Board of Regents, Mrs. Albury must have been legally domiciled in Georgia for a period of at least 12 months immediately preceding the date of registration. After Mr. and Mrs. Albury have lived in the State of Georgia for at least 12 months, they will be entitled to pay resident tuition fees at Georgia State College. Until this 12-month period has elapsed, Mr. and Mrs. Albury must pay nonresident tuition fees.
July 23, 1963
OPINION TO THE TEACHERS' RETIREMENT SYSTEM
You asked that I review the case of a certain deceased member of the Teachers' Retirement System of Georgia, for the purpose of determining whether the surviving wife qualifies for a monthly benefit or a lump sum cash settlement (a return of contributions with interest).
The surrounding factual situation is substantially as follows. The deceased became a member of the Retirement System in 1960, making payment of contributions for all previous years of service, as required by the law. His membership application seems in order, and there is no question of his valid membership. Nevertheless, no designation of primary beneficiary form, either 2-C (the standard form which is normally utilized to effect a change in beneficiary from that named in the membership application), or 2-E (which is a recently adopted form used to designate the beneficiary of the equivalent of a monthly service allowance with 15 or more years service or after age 60), was ever executed. On June 18, 1963, your office received an application for retirement from the member in question, to become effective August 1, 1963. Approximately three weeks before the application would have become effective, the member died. On both the membership application and on the application for retirement, his wife was designated as primary beneficiary. His wife now wishes the monthly payment plan, but because of an opinion rendered by this office ap-

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proximately 2 years ago, you feel perhaps a form 2-E must be on file before such a monthly benefit is payable to a beneficiary.
I have reviewed the opinion to which you make reference (Ops. Att'y Gen. 335 (1960-61)) which was concerned with the question of whether a beneficiary was entitled to return of contributions. At that time, you were of the opinion that as a result of amendments in 1953, a beneficiary could receive only a monthly benefit. In addition I have reviewed the Retirement Act (Georgia Laws 1943, p. 640) as amended. (For convenience, all references to the Act will be to Georgia Code Annotated.) The particular sections involved are 32-2905 (3) (a), and (4) ; and 32-2905 (7) and (8).
Some misunderstanding may have arisen from the previous opinion. Examining the opinion, you will note I explained that 32-905 (7) was originally the only provision in law for payment of benefits or return of contributions when a member died in service. I stated:
"Under the law as originally written, if a member died in service, his beneficiary or estate was entitled to the 'amount of his accumulated contributions' with interest. There was no alternative method of payment to a member's beneficiary or estate. Payment under . . . 'Return of Contributions' was the only provision for payment of a benefit where a member dies in service and that Section of the law, codified in the Georgia Code as Section 32-905 (7), ... has not been repealed nor amended since its original passage.
"However, since the original law of 1943 was adopted, the Section dealing with Disability Retirement Benefits has been amended so as to make additional and alternative benefits or allowances available where a member dies in service."
I then explained and illustrated how Georgia Laws 1953, p. 374, had substituted new sub-sections (3) and (4) to the original 5. The new sub-sections were concerned with "retirement allowances," which under the definitions of the original Act would include monthly benefits payable from both the annuity and pension funds, whereas the original sub-section (7)-which remains unchanged-is concerned only with return of contributions, and with the annuity savings fund. Therefore I felt the new sub-sections did not affect the provisions of sub-section (7).
"It is my opinion that this additional and alternative benefit death allowance [the new subsections (3) and (4)] is not exclusive nor does it repeal the Section of the law providing for Return of Contributions."
My opinion remains unchanged concerning this point.
I think perhaps an additional statement in that opinion was possibly misleading. Discussion concerning the adoption of the additional designation of primary beneficiary, Form 2-E, seems to confirm this. In reference to sub-section (3), I said:
"In my opinion this means a beneficiary named to receive the death allowance provided for under this Code Section which

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refers to a percentage of a service retirement allowance and not a beneficiary named to receive the amount of accumulated contributions with interest as provided for in the Code section dealing specifically with Return of Contributions."
From this statement, it was concluded there should be two methods of designating the primary beneficiary-one for return of contributions under sub-section (7), and another to indicate an allowance under sub-sections (3) and (4). This matter was discussed with and approved by the Board of Trustees of the Teachers' Retirement System, and later implemented by adoption of the new form 2-E, to be in addition to the original from 2-C which was continued in use.
This new form, 2-E, differs from the old in that it particularly ties itself to 32-2905, sub-sections (3), (4) and (8), and contains wording to indicate a monthly equivalent of a service retirement allowance is to be payable, in lieu of a lump sum return of contributions. The old 2-C authorizes payment of the total amount of accumulated contributions "and/or other benefits that may be provided under the Act." Without ruling upon the point, I might suggest, in passing, that conceivably the old form 2-C could very well have sufficed to authorize payment of monthly benefits because of the additional words "and/or other benefits." I might also point out this is identical with the wording on the application for membership under which an applicant designates his primary beneficiary.
However it is my opinion we do not need to pass upon this point. The new form is not one whose language is dictated by law. Its conception, adoption and institution were entirely administrative choices and decisions. By this I do not mean to intimate it is without legal foundation or status, but am simply showing that the law has not singled out any one specific manner in which the designation is to be made.
In order to grant the deceased member's surviving wife the form of benefit which she desires, there must be some indication of the intent of the member that this is what he desired. The normal method would have been by forms 2-E or 2-C. There having been no such forms executed or filed, we are left with the choices of the membership application and the wording there, and the retirement application. It has been suggested that because of the proviso at the end of the first paragraph of 32-2905 (8), i.e.:
"Provided, however, that if he dies within 30 days after retirement, his optional election shall not be effective, and he shall be considered to be a member in actual service at the time of his death,"
that the entire retirement application is rendered void. I feel this would be an erroneous conclusion. It would not be effective as a retirement application insofar as it attempted to effectuate the optional elections provided for in sub-section (8). However, it is executed with the same formality, being under oath, as the designations of primary beneficiary. I have previously ruled, on more than one occasion, a designation of beneficiary need not be strictly in the

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form as furnished. We have accepted a letter as being sufficient evidence. of the member's intention to uphold changing of a beneficiary. This has been in accordance with the view I have shared with the Board of Trustees, that the intention of the member, if ascertainable, should recognized and followed, unless contrary to law.
On the application for retirement filed, the deceased has plainly check a box indicating he chose "A reduced allowance payable to me and my beneficiary under Option No. 2." And further on the same page he has designated his wife as the "Beneficiary to whom any benefits shall be payable in event of my death after retirement, should I elect one of the optional retirement allowances." This seems to be unmistakable evidence of the deceased member's intentions.
It is my opinion that in the final analysis this matter is one which lends itself to the attention, consideration, and determination of the Board of Trustees, in its enlightened discretion in administering the affairs of the Retirement System. However, I am very definitely of the opinion there is ample justification, and I can think of no legal obstacles, to treating the designation on both the membership application and particularly the retirement application as fulfilling the requirements normally supplied by execution of form 2-E.
July 24, 1963
OPINION TO THE COMPTROLLER GENERAL
Receipt is acknowledged of your letter requesting my opinion as to whether Georgia Laws 1960, pages 289, 552 (Georgia Code Ann. 56-1523), which limits payment of dividends to that amount which is derived from realized profits is applicable to "stock dividends," and if, in the event that it is so applicable, these dividends can be paid from earned surplus when paid-in capital has been depleted during the company's organizational years and not yet restored to its original amount.
The relevant statute, i.e., Georgia Laws 1960, 289, 552, reads as follows:
"A domestic stock insurer shall not pay any dividend to stockholders except out of that part of its available surplus funds which is derived from realized profits on its business." (emphasis added)
It is commonly recognized that a "stock dividend" is not in the ordinary sense a dividend, a dividend being a distribution of the profits of a company to stockholders as the income from their investment, while a "stock dividend" is merely an increase in the number of shares by capitalizing surplus. It is not a distribution of profits to the stockholders. See Lancaster Trust Co. v. Mason, 152 N.C. 660, 68 S.E. 235 (1910).
The General Assembly was attempting in 56-1523 to prevent distribution of the property on which creditors are entitled to

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rely for their security. The word "pay" found in this section substantiates this opinion. In the case of Williams v. Western Union Tel. Co., 93 N.Y. 162, 189 (1883), the Court said that, "a stock dividend does not distribute property, but simply dilutes the shares as they existed before." See also: In re Bingham's Will, 194 N.Y. Supp. 2d 465, 163 N.E.2d 301 (1960).
Therefore, it is my opinion that 56-1523 does not relate to "stock dividends."
The second question posed by your letter is contingent upon the determination of the applicability of 56-1523 to "stock dividends." Therefore, the decision that 56-1523 does not so apply eliminates the necessity of answering that question at this time.
July 25, 1963
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
In your recent letter you asked two questions:
No. l-Is it necessary for this Department to furnish blood testing facilities for determining whether or not a person is intoxicated as provided in 68-1625 of the Georgia Code Annotated; and
No. 2-If a person charged with being intoxicated demands a blood test at a time subsequent to his arrest (approximately two hours), is it necessary to comply with this request?
Georgia Code Ann. 68-1625 (4) provides as follows:
"Any person who is arrested for driving or operating avehicle while under the influence of intoxicating liquor shall have the right to demand a blood test to determine the amount or weight of alcohol in his blood, and it is mandatory upon the officials in whose custody he shall have been placed after arrest to have such a blood test made immediately after demand by the arrested person, provided the facilities for making such a test are available in the county of his confinement. The Director of Public Safety shall designate one or more physicians or certified hospital technicians for each county to perform such tests upon the request for any person so arrested. The costs of such tests shall be borne by the person so arrested and shall be only the actual costs but in no event more than $10." (emphasis added)
Under the provisions in the above-quoted statute, you are under no duty to provide testing facilities if such facilities are not available in the county where a person is arrested.
Your second question deals with the amount of elapsed time between the time a person is arrested and the time that his blood is tested to determine intoxication. Of course, the person arrested must

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pay for the blood test as provided by the last sentence in 68-1625 (4), and if a demand is made approximately two hours after his arrest, you should comply if such facilities are available in the county since your refusal could possibly amount to a violation of the Due Process Clause of the Constitution. It is very important that the total amount of elapsed time between the time of the arrest and the time that the blood test is administered be noted on the report since this information is admissible as evidence to establish the fact that the accused may have "sobered" considerably during such elapsed time. This matter is discussed in the opinion of Justice Shea, In Re Newbern, 175 Cal. App. 2d 862, 1 Cal. R. 80 (1959).
"It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time. In a matter of a few hours an intoxicated person may 'sober up.' The efficacy of a blood test depends upon its being made as soon as possible after the time of the offense. To be of any probative value the test must be 'near' to the offense in point of time. If it is not taken promptly after the arrest, it proves nothing.
"While there is no duty or obligation on the law enforcement agencies to give a blood test under these circumstances, the arrested person, on his own behalf, should be entitled to a reasonable opportunity to attempt to procure a timely sample. To refuse him such reasonable opportunity is to deny him the only opportunity he has to defend himself against the charge.
"In State v. Munsey, 152 Me. 198, 127 A2d 79, the point was considered. In that case the defendant was permitted to call a doctor but the doctor was not available. The court held that since he was given the opportunity to call a doctor he was not denied due process. In 127 A2d 79, at page 82, the Supreme Court of Maine spoke as follows: 'If all reasonable efforts fail and no blood sample is in fact procured, no rights of the respondent are infringed or his right is not to have a test sample taken but only to have a reasonable opportunity to attempt to gather the desired evidence. When the respondent is held incommunicado and his requests for assistance in procuring a doctor are unreasonably ignored or refused by the detailing officers, it may be said that the respondent is denied the essentials of governmental fair play. Officers charged with law enforcement must always be mindful that the public has as great an interest in the vindication of the innocent as it does in the punishment of the guilty.'
"In the case at bar the defendant requested the opportunity to call a doctor of his own choice and at his own expense in an effort to obtain the only evidence that could vindicate him of the charge. This was refused. We cannot but wonder why. If he was drunk as charged, the police would have had the evidence of the blood test to corroborate their opinion. Their refusal tends to cast some doubt upon their opinion and lends credence to the protest of Mr. Newbern. The refusal to permit

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him to call a doctor was unreasonable and a denial of due
process."
For the reasons stated herein your two questions are answered as follows:
1. It is not necessary to furnish blood tests to determine sobriety unless there are such testing facilities available in the county where the accused is held; of course, if these facilities are available, and a demand is made, the test must be administered. In the event that it is doubtful if testing facilities are available in a particular county when the demand is made, a reasonable effort should be made at that time to learn whether or not the testing facilities are available and, if so, the test should be made in compliance with the demand.
2. Upon demand by the accused, and if the testing facilities are available, the blood test to determine sobriety should be administered with the elapsed time noted on the report.
July 26, 1963
OPINION TO THE DEPARTMENT OF AGRICULTURE
This will acknowledge receipt of your request for my opmwn concerning the authority of the city of Brunswick to impose a license fee upon a Florida grower of nursery products who engages in the business of selling such products in the city of Brunswick.
You state that the affected person has paid the city license fee under protest and that he holds a growers permit from the state of Florida and feels that there is an exemption from the city license as a result of reciprocity. You further recite provisions of Georgia Code Ann. 5-603 and 5-606.
There is no reciprocal agreement between the State of Georgia and the State of Florida under the provisions of Georgia Code Ann. 5-605 through 5-612. You will note that these sections authorize the Commissioner of Agriculture to enter into reciprocal agreements with other states.
Section 5-603 provides, "No municipal corporation shall levy or assess a tax on any cotton or the sale thereof, or levy or assess a tax on any agricultural products raised in this state, or the sales thereof (other than cotton), until after the expiration of three months from the time of their introduction into said corporations." This section applies to agricultural products raised in this state.
Georgia Laws 1957, p. 607 (Georgia Code Ann. 92-4108) places a restriction upon the taxation of agricultural products and livestock by municipal corporations.
The provisions of this act are applicable only to agricultural products raised in this state. Agricultural products, as used in this section, include swine, hogs, sheep, goats and poultry and the products

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thereof in addition to the other products included within the definition of agricultural products. Further, this section is applicable only where the sale of such products is made within ninety days after its introduction into the municipality. In other words, as to those products raised in this state, a prohibition is placed upon the taxation of such products by municipal corporations within the ninety days after introduction.
From the above, it would appear that there is no exemption from taxation nor is there exemption from the license fee as to any person bringing nursery products into the State of Georgia that would preclude a city from imposing a license fee upon the sale of such products within the municipality.
July 26, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to answer your request for my official opinion as to whether the Medical Advisory Committee of the Division of Vocational Rehabilitation operating under the State Department of Education can promulgate rules and regulations, so as to limit participation by the medical profession (on your Division's Panel of Medical Specialists) on the grounds of ethics and morals when they (Medical Specialists) are otherwise professionally qualified.
It is my understanding that the Division of Vocational Rehabilitation provides services for persons with physical or mental conditions constituting a substantial vocational handicap to enable them to return to or retain employment. Medical treatment and/or surgery is provided for indigent to remove or alleviate a disability. Treatment and/or surgery is provided only by members of the Panel of Specialists. Members of the panel of specialists must be approved by the Medical Advisory Committee of the Division of Vocational Rehabilitation composed of twenty-eight outstanding doctors from all over the State, representing the various medical specialties. Clients have a choice of doctors in their field of disability, who are members of the panel.
It is my further understanding that the Medical Advisory Committee of the Division of Vocational Rehabilitation feels that even though the persons served by this agency are indigent, they are entitled to the best medical care available to enable them to return to employment, and therefore, has adopted certain minimum standards for membership on the Panel of Medical Specialists.
Your questions relate to certain amendments to be incorporated into the minimum standards for membership on the panel of Medical Specialists. You forwarded me copies of the present qualifications as well as the new proposals. The one with which you are primarily concerned, with changes underlined, reads as follows:
"(4) Each applicant must be a member of his local medical society in good standing, and also be of good moral character

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and have proven that he has conducted himself in such a way as to reflect the highest ethical standards of his profession."
Section 32-2302 of the Georgia Code Annotated provides in part as follows:
"There is hereby established in and under the supervision of the State Board a Division of Vocational Rehabilitation. The Division shall be administered under the general supervision and direction of the executive officer, by a director appointed by the executive officer, with the approval of the State Board in accordance with established personnel standards and on the basis of his education, training, experience, and demonstrated ability in the field of vocational rehabilitation. The Director shall devote his full time to the administration of the vocational rehabilitation program. In carrying out his duties under this Chapter, the Director:
(a) Shall, with the approval of the executive officer, prepare regulations for promulgation by the State Board governing personnel standards, the protection of records and confidential information, the manner and form of filing application, eligibility, and investigation and determination thereof, for vocational rehabilitation services, procedures for fair hearings and such other regulations as he finds necessary to carry out the purpos.es of this Chapter."
(b) Shall, with the approval of the executive officer establish appropriate subordinate administrative units within the Division." [emphasis added]
Section 32-2320 of the Georgia Code Annotated provides, in part:
"The Division of Vocational Rehabilitation of the State Department of Education is hereby authorized to provide such medical, diagnostic, physical restoration, training, and other rehabilitation services as may be needed to enable disabled individuals to attain the maximum degree of independent living. . . ."
These statutes have not been the subject of review by any appellate court since their enactment and I do not find any changes in the statutory law with reference to procedure for administration of these laws. It appears, therefore, that your question whether a State Agency such as yours can limit participation by the Medical Profession on the grounds of ethics and morals when they are otherwise professionally qualified, would be a matter of interpretation of the statutes, applying whatever general law that may be applicable.
These changes deal with moral and ethical standards of professionally qualified persons. I cannot find a Georgia case on the subject. However, I call your attention to a New York case which clearly states the general law on this point. In the case of Cherry v. Board of Regents 289 N.Y. 148, 44 N.E.2d 405, 412 (1942) the Court states:
"The professional standards by practitioners of dentistry . . . are not so indefinite that they cannot he determined by

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qualified persons since such standards are part of the ethics of the profession and what is generally called the 'ethics' of the profession is but the concensus of expert opinion as to the necessity of such standards."
With reference to "moral conduct" as used in your proposed standards, this means nothing more than moral reputation. I call your attention in this connection to another out-of-state case wherein a California court held:
"Moral reputation is among other things that which others say as to one's morals which means distinguishing between right and wrong."
People v. One 1940 Chrysler Convertible Coupe, 48 Cal. App..2d 546, 120 P.2d 117, 118 (1941). [emphasis added]
73 C.J.S. Public Administrative Bodies and Procedure 93, provides:
"The authority of a public administrative body or agency ordinarily includes the power to make or adopt rules and regulations with respect to matters within the province of such body, provided such rules and regulations are not inconsistent with law."
It is my opinion that the charges you propose are not inconsistent with law and that a State Agency such as yours can promulgate rules and regulations so as to limit participation by the Medical Profession (on the Division's Panel of Medical Specialists) on the grounds of ethics and morals when they (Medical Specialists) are otherwise professionally qualified.
July 26, 1963
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
In your letter you stated you had received a letter from the Regional Representative of the Social Security Administration in which he raised two questions concerning Superior Court Judges Emeritus. You have accordingly forwarded his letter to me with your request and have asked:
1. "As to whether or not a Superior Court Judge Emeritus is a member of the Superior Court Judges Retirement Fund of Georgia . . . or a member of any other retirement system;
and
2. "Whether or not a Superior Court Judge Emeritus is considered as being in an employment relationship with the State."
The first question is difficult to answer. A person might be considered as a member of a retirement system for certain purposes

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though perhaps not for others. Especially could this be so in this instance where the question has arisen in the Social Security Administration, and it is evident they probably wish the question resolved in light of social security statutes. In essence, the determination is not to be made on State law alone, but in the final analysis, is to be determined on the State law considered in light of the Federal law. The Federal law, of course, is broad so as to permit a definition which would include the various concepts of membership as established and practiced among the several states.
As far as Georgia law is concerned, nowhere in the Superior Court Judges Emeritus Act (Georgia Laws 1945, p. 362, as amended, unofficially codified as Georgia Code Ann. Chapter 24-26A) can I find the word "member" used. In contrast, both the Teachers Retirement System Act (Georgia Laws 1943, p. 640 ; Georgia Code Ann. Chapter 32-29) and the Employees' Retirement System Act (Georgia Laws 1949. p. 138, as amended; Georgia Code Ann. Chapter 40-25) specifically define who shall be considered as a member of the System concerned. (See Georgia Laws 1943, p. 640 1 (6); Georgia Code Ann. 32-2901 (6); Georgia Laws 1949, p. 138 1 (5); Georgia Code Ann. 40-2501 (5). Both provide that only active contributing persons are members ; and after retirement a person is no longer considered as a member, but is classed as a beneficiary. I am not certain what the term "member" as used by the Regional Representative of the Social Security Administration in his letter to you is intended to mean. For the purposes of this opinion, I am presupposing a definition is intended as analogous to that utilized in the Employees' and Teachers Retirement Acts-a full-time, gainfully employed person making contributions to such system for future retirement, as contrasted with a person no longer making contributions but being merely the recipient of benefits. If this definition is adopted, it is my opinion a Superior Court Judge Emeritus is not a member of the Superior Court Judges Retirement Fund and it goes almost without saying he could not be a member of any other retirement system. I have found several decisions from other jurisdictions which I feel support this conclusion. McKeag v. Board of Pension Com'rs. of City of LoSi Angeles, 21 Cal.2d 386, 132 P.2d 198 (1942), stands for the principal that in the absence of a special definition of membership in a pension statute, no unique or exclusive group is connoted by the word "member" but the word is synonymous with "employee." And of course an employee is a person in active serivce, or to relate to our problem, would be an active working Superior Court Judge who has not retired but is contributing to the Fund, as contrasted with a re,tired Judge drawing benefits.
Another case, Benedict v. LaGuardia, 252 App. Div. 540 300 N.Y. S. 385 (1937), is interesting, as it held a member of a City Employee's Retirement System who applied for and was granted a retirement allowance on expiration of his term as a Supreme Court justice ceased to be a "member" and became a "beneficiary" of the Retirement System. To the same effect is State ex rei Smith v. Annuity and Pension Board of City of Milwaukee. 241 Wis. 625, 6 N.W. 2d 676 (1942).
I also find that in similar instances of retirement systems, the

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retired beneficiaries are not considered members for voting, even in the question of deciding whether to extend social security coverage to the employees under the retirement system.
It is my opinion from reviewing the Federal Social Security Act, that the concept of retirement systems as contemplated there is of the nature of our larger retirement systems, such as the Employees' and T'eachers Retirement. Thus I feel that in the sense the Regional Representative is seeking an answer to his question; a Superior Court Judge Emeritus is not a member of the Superior Court Judges Retirement Fund. I must remind you this opinion is to be strictly construed in light of the question, the manner in which it arose and the purpose to which the answer is to be applied. And of course this would not be binding upon the Social Security Administration should they choose to interpret the language otherwise.
Your second question seems no less easily resolved. Though not furnishing us a clear-cut answer, the Judges Emeritus Retirement Act makes many references which lead me to the conclusion there is an employment relationship, although a dormant one, not subject to being activated except with the concurrence and acquiescence of the person in emeritus status. The usual definition of "emeritus" would perhaps not be compatible with this theory. Among the definitions which may be found for "emeritus" is one in Webster's New International Dictionary: "retired, as for age, with a title corresponding to that held in active service."
A review of the Act should prove of benefit to us at this time. For convenience, all references will be made to the Georgia Code Annotated. Section 24-2601a creates the "office of Judge of the Superior Courts Emeritus." Section 24-2603a provides for the method of appointment and "upon such appointment being made by the Governor, and the commission issued by the Governor, the resignation [as judge] shall automatically become effective."
The compensation of a Judges Emeritus is set by 24-2604a which in part provides that he "shall receive from the State of Georgia an annual salary" and also provides for payment from the counties of the circuit of which he has lately been judge a salary "equal to twothirds of the amounts which had been paid to him as judge...."
Section 24-2605a prohibits persons holding the emeritus position from serving as attorneys, proctors or solicitors, and authorizes the Governor to call upon such judges emeritus to serve as Judges of the Superior Courts. In 24-2605a.l, a judge who is "eligible for appointment or shall have actually been appointed," and who should subsequently "be elected or appointed to, or qualify for an office of profit or trust under" the Constitutions of the United States or Georgia shall have his "right to appointment" or "to hold such appointment and to draw the salaries fixed" for judges emeritus suspended during such time he holds such office. Section 24-2606a makes judges emeritus members ex-officio of any judicial council established by law, and further, 24-2607a prescribes a duty of such judges emeritus to consult with the Justices of the Supreme Court and Court of Appeal, to advise and assist the courts, and to consult with the Attorney

214
General upon legal matters when requested. In addition to the duties which were imposed by the original act, certain further duties were prescribed in Georgia Laws 1962, p. 547. That act, codified as the Georgia Code Ann. 24-2621a, 24-2622a and 24-2623a, provides for services as Judge of the Superior Court of the circuit in which he formerly presided and also prescribes duties concerned with hearing and determining motions for new trial and bills of exception.
It seems to me there is an employment relationship of some nature between the State and a judge emeritus. That it is not an active relationship is equally evident. Though duties are imposed, in the main they are of a permissive nature and are not of such mandatory status that there is an obligation to serve which could be compelled through some legal action. It is my opinion the duties are primarily taken and are established as such to assist the judges emeritus and to provide him with an outlet in which to channel his activity as to render assistance to the active judges in the performance of their judicial functions.
Still, when viewed in terms of the Social Security Act, I do not feel the Judge Emeritus would be an employee. Therefore, I feel that on this point again, I must decline to give any firm answer other than the observations already noted.
I regret being unable to furnish any more definite opinion, but will be happy to assist in any further manner if desired.
July 30, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge your letter requesting an opinion on the legality of employing a non-citizen in a teaching position for a period of one year at the Georgia School for the Deaf.
You ask in your letter whether this teacher may be employed for a period of one year since she is not an American citizen.
On July 30, 1959, an opinion was rendered by this department to Honorable Edwin L. Swain, Director, State Merit System of Personnel Administration, to the effect that a department of the state government may not employ an alien without a certification of the absence of any qualified American citizen available to perform the duties of the position. Ops. Att'y Gen. 320 (1958-59).
On January 6, 1960, I write another opinion to Honorable Edwin L. Swain covering the question propounded. Ops. Att'y Gen. 448 (1960-61).
The provisions of law cited in these opinions, supra, are in full force and effect as of this date, and are applicable to your present request. I am enclosing for your information and guidance copies of these two opinions.

215
To answer your question clearly in this letter, I deem it advisable to quote you Georgia Code Ann. 89-106, which provides:
"No department of the State Government or any political subdivision thereof shall employ any alien for any purpose until a thorough investigation has been made and it is ascertained that there is no qualified American citizen available to perform the duty desired by the State of Georgia, any department thereof or any political subdivision thereof: Provided, however, that any institution of the University System of Georgia may employ any alien who is attending such institution as .a student, and any such institution may employ an alien for a period of time not to exceed one year, or enter into exchange professorship agreements with institutions, foreign or otherwise, where aliens are involved, for a period of time not to exceed one year, all subject to the restrictions of this proviso but without regard to the remainder of this section."
You understand, of course, that such a teacher must meet the requirements for a teaching certificate, must comply with the requirements of the State Merit System and of the State Board of Education, and must also comply with the provisions of Georgia Code Ann. Ch. 26-9A, Sedition and Subversive Activities Act.
Should your division, after a thorough investigation, ascertain that there is no qualified American citizen available to perform the duties of the position which you seek to fill, then you would not be prohibited from hiring an alien to perform such duties.
It is my suggestion that in the event that such thorough investigation is made and the statutory requirements are met, that the Director of the Division of Vocational Rehabilitation of the State Department of Education file with the State Merit System a certificate of such finding in order that a record may be kept of the facts found through such an investigation.
I am not unmindful of Georgia Code Ann. 32-2802, which provides:
"No statute nor regulation as to uniformity of curricula, course of study, textbooks, period of operation, qualifications or compensation of teachers, nor any other statute or regulation, applicable to other schools, shall apply to the schools herein referred to, as it is declared to be the public policy of this State, that on account of the special requirements of care, training, and education, of the blind and of the deaf they shall have that care, training, and education, specially adapted to their needs, and the State Board of Education is authorized to act accordingly."
It is my further opinion, however, that the provisions of this section are not applicable to this situation.

216

July 30, 1963

OPINION TO THE STATE BOARD OF PODIATRY EXAMINERS

In your letter you ask if a Board member holding over after the term of office to which he was appointed has expired, who has learned that he will not be re-appointed, has legal authority to perform the duties of a Board member in preparing and grading examination papers.

Section 89-501 of the Georgia Code Annotated provides that all offices in the State shall be vacated in the following manner:

1. Death of incumbent.
2. Resignation, when accepted.
3. By decision of competent tribunal declaring the office vacant.
4. Incapacity.-By voluntary act or misfortune of incumbent, whereby he is placed in any of the specified conditions of ineligibility to office, which shall operate from the time the fact is ascertained and declared by the proper tribunal.
5. Non-residence.
6. Failing to obtain commission or give bond.
7. By abandoning the office and ceasing to perform its duties, or either.

Since none of the aforementioned seven grounds exist in the case of a hold-over, there is no vacancy in the office and the incumbent can legally perform the duties of the office until his successor is appointed and qualified.

In this connection, your attention is called to the following cases.

that hold that the office does not expire at the expiration of the term

for which the officer was elected or appointed, but the elected or ap-.

pointed officer holds over until his successor is commissioned and

qualified:



Powell v. Stephenson, 169 Ga. 406 (1929);

Walker v. Ferrill, 58 Ga. 512 (1877);

Pearson v. Lee, 173 Ga. 496 (1931).

Therefore, it is my opinion that a Board member holding over after his term of office has expired has authority to act as a member of the Board until his successor is actually appointed and qualified by being sworn in as a member of the Board.

July 31, 1963
OPINION TO THE INSURANCE DEPARTMENT Receipt is acknowledged of your letter in which you request my
opinion on whether the Expendable Surplus required of stock insur-.

217
ance corporation by Georgia Laws 1960, pages 289, 317. (Georgia Code Ann. 56-307), must be maintained at all times subsequent to initial licensing.
It is my opinion that the aforementioned surplus is required in order to insure that newly formed insurance companies will be financially able to survive their first years of operation. Therefore, it is an initial requirement but not a continuing one.
The pertinent portion of Georgia Laws 1960, pages 289, 317, reads as follows:
"In addition to the minimum paid in capital ... required by this Title, an insurer shall possess when first authorized in the state, surplus ... equal to the larger of $200,000.00 ... or fifty percent (50%) of its paid-in capital stock ... otherwise required under 56-306 for the kinds of insurance to be transacted."
This Code provision was modeled after similar provisions of the Codes of Oklahoma and Kentucky which state that this requirement is to apply to newly formed domestic insurers and newly authorized alien insurers which have been doing business outside of the state for less than five years. This five-years-in-business requirement supports the contention that this is a financial responsibility provision. The Georgia provision, although it demands the surplus from all newly authorized companies, was passed with the same proposition in mind.
The statutes of Oklahoma and Kentucky and the comments to the original draft prepared by the University of Georgia, state that this requirement does not apply to insurance companies which are already doing business in the state on the effective date of the provision. This indicates that the paid-in surplus is not to be regarded as an essential requirement for the continuation of business by a company which has become financially stable.
As stated in your letter, the above interpretation of 56-307 is in seeming conflict with Georgia Code Ann. 56-316 [2], which reads as follows:
"The Commissioner shall refuse to issue or renew or revoke or suspend an insurer's certificate of authority: . . . [2] if the insurer no longer meets the requirements for the authority originally granted, on account of deficiency in assets or otherwise."
As a matter of statutory construction, the more specific statute, i.e'. 56-307, governs in case of a seeming conflict with a more general one such as 56-316 [2]. Also, the words "deficiency in assets" are intended to apply primarily to such items as "impairment of capital" and "insufficiency of policy reserves." If both capital and expendable surplus were required to be maintained at all times they would be synonymous. The separate provisions for "capital" and for "expendable surplus" make it evident that the two are not synonymous.

218
Therefore, it is my opinion that although paid-in surplus is re~ quired of all companies upon their authorization to do business in the State of Georgia, it is within the discretion of the Commissioner to determine at what time the particular company is in such sound financial position as to no longer require this account to be maintained at its original level.
July 31, 1963
OPINION TO THE STATE MERIT SYSTEM OF PERSONNEL ADMINISTRATION
After reviewing the file of correspondence with the former member of the Merit System which was enclosed with your letter of July 23, 1963, it is my opinion that her letter of July 22, 1963, may be considered as a confirmation of a prior proper appeal filed on June 26, 1963, from her dismissal by the Game and Fish Commission.
As you are well aware, the Rules and Regulations of the State Personnel Board, with respect to Appeals, set out in Rule 14, do not prescribe any specific form for the filing of an appeal. The rules state:
"Such appeal must be filed in writing with the Director not later than fifteen calendar days after the notification of the action in question was mailed, or from the effective date of the action, whichever is later."
The person in question was dismissed by the Game and Fish Commission on June 15, 1963. On June 26, 1963, she wrote you as Director of the State Merit System a letter in which she recited that she had received a letter from the Director of the Game and Fish Commission which states that as of July 1, 1963 her services with the Department would no longer be needed. She also states in her letter:
"In view of the above, it is my request that I be granted a hearing before the Merit System Board, at their earliest convenience."
On July 3, 1963, you wrote a letter to her in which you state:
"This will acknowledge your letter of appeal under date of June 26, 1963. In accordance with established procedures, we are forwarding a copy of your letter to Mr. Joseph H. Thomas, Hearing Officer for the State Personnel Board, and to the members of the State Personnel Board for their attention."
You also received a letter, dated July 3, 1963 from Mr. R. Shaefer Heard, Senator of the 29th District, in which you were advised:
"[The person in question] has forwarded to me a copy of her letter to you of June 26, 1963 requesting a hearing before the Merit System Board in regard to her dismissal from her position in the Manchester office by Mr. Fulton Lovell, Director of the Game and Fish Commission. . . ."

219
You replied to Mr. Heard on July 9, 1963 and advised him as follows:
"We have received [her] appeal and, in accordance with established procedures, have forwarded copies of her appeal to the members of the State Personnel Board and to the Hearing Officer of the Board for their information and consideration. . . ."
Although in letters dated July 3 to members of the State Personnel Board and to Mr. Charles L. Davidson, Jr., Chairman of the Game and Fish Commission, you took the position, "It will be noted that [she] is not appealing for reinstatement but is appealing to 'discover the real reason why I was dismissed and to find out what really happened to the money, .. .'" I am of the opinion that [she] had previously complied with the Rules and Regulations of the State Personnel Board with respect to filing of appeals in writing since no particular form is prescribed, and it would become a matter of an intent on her part and an acknowledgment by you of the expression of her intent in writing. The person in question in her letter of July 22 merely reaffirms the expression of her intent that her letter of June 26, 1963 constituted an appeal to her to the State Personnel Board.
It is my further opinion that her appeal filed June 26, 1963, was within the time prescribed by your Appeals Paragraph 14.101, being within the "fifteen days after the notification of the action or from the effective date of the action, whichever is later.''
August 1, 1963
OPINION TO THE MERIT SYSTEM
With reference to your request for my opinion regarding the eligibility of State Highway Department employees engaged in a cooperative program between that department and the Georgia Institute of Technology for coverage under the State Employees Health Insurance Plan, it is my official opinion that such part-time employees are not full-time employees eligible for coverage under the State Health Insurance Law.
The State Employee Health Insurance Plan Act, set out in Georgia Laws 1961, page 147, 1, provides:
"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, .. .''
The Act throughout provides coverage for employees as defined. As I understand the co-operative program which is in effect, persons attend school as students for a period of months as full-time students and then during alternate periods of months are engaged as intermittent employees of the Highway Department of the State of Geor-

220
gia. It is my opinion that the expression "full-time employee" as used in the State Health Insurance Plan Act means continuously and regularly employed for a full working day, and that any employee who worked part-time, intermittently, seasonally, or irregularly as an employee of the State could not be considered as a full-time employee.
It is my opinion that the very expression "full-time employee" is contradictory and in conflict with employment that is obviously intermittent, seasonal and irregular. For these reasons I would not think that employees engaged in the cooperative program are eligible under the State Employees Health Insurance Plan.
August 2, 1963
OPINION TO THE DEPARTMENT OF REVENUE
Reference is made to your memorandum of July 9, 1963, asking for an official opinion as to whether or not municipalities of the State are bound by valuations fixed by the State Revenue Commissioner on the property of public utilities in general, and on that of railroads in particular.
Section 92-5902, Georgia Code Annotated, provides that annual tax returns by public utilities shall be made to the State Revenue Commissioner, and "the laws now in force regarding the taxation of railroads in the State shall be applicable to the assessment of taxes" on such businesses. (Georgia Laws 1927, p. 97; Georgia Laws 1935, p. 64).
Section 92-2801, Georiga Code Ann., provides as follows:
"All property, real and personal, belonging to railroad companies in this State, which is within the limits of any municipal corporation, shall be subject to taxation by the said municipality as fully and as completely as is the property of other corporations within the limits, . . ."
Various Code sections provide what the returns of railroad companies with respect to property located in municipalities shall show, and how the rolling stock and other personal property of the railroad companies is to be assessed.
Section 92-6001 provides as follows:
"The State Revenue Commissioner shall carefully scrutinize the returns made to him, and if in his judgment the property embraced therein is returned below its value, or the return is false in any particular, or in any wise contrary to law, he shall within 60 days thereafter correct the same and assess the value, from any information he can obtain." Section 92-6005 provides :
"The returns of railroad companies for the purposes of county and municipal and school taxation shall be subject to

221
the same inspection, objection, and assessment by the State Revenue Commissioner, and arbitration, as is provided by law for returns of such property for purposes of State taxation."
In view of 92-5902, providing that the laws regarding the taxation of railroads shall be applicable to the assessment of taxes on other utilities, and in view of the other sections cited, it is our conclusion that municipalities of the State are bound to accept valuations as finally fixed by the State Revenue Commissioner on the property of public utilities operating within their limits.
August 2, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge your request for an official opinion relating to a proposed contract between the State Board of Education and Southern Bell Telephone and Telegraph Company.
You state in your letter that "The State Board of Education is considering the advisability and legality of its entering into a 10-year contract with the Southern Bell Telephone Company to provide microwave service to interconnect State-owned educational television stations. The proposed contract includes a reducing termination clause whereby, in the event that the contract should be terminated before the expiration date, the State Board of Education would be required to pay to the Telephone Company the unamortized balance of its investment in the micro-wave system based on one-tenth of the cost for each year of the contract which is unfulfilled."
You then ask the following question:
"Can the State Board of Education legally enter into a contract for a long-term period under conditions as described above?"
I call your attention to Article VII, Section III, Paragraph I, of the Constitution of the State of Georgia, (Georgia Code Ann. 2-5601), which provides:
"Purposes for which contracted.-No debt shall be, contracted by, or on behalf of the State, except to supply such temporary deficit as may exist in the treasury in any year for necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars, and any loan made for this purpose shall be repaid out of the taxes levied for the year in which the loan is made. However, said debt may be increased in the sum of three million, five hundred thousand dollars for the payment of the public school teachers of the State only. The principal amount borrowed for payment of teachers shall

222
be repaid each year out of the common school appropriation, and the interest paid thereon shall be paid each year out of the general funds of the State." [emphasis added]
This section of the Constitution was the subject of review in the case of Barwick v. Roberts, 188 Ga. 655 (1939), wherein the Georgia Supreme Court held in headnote two thereof as follows:
"The State Constitution, art. 7, sec. 3, par. 1 (Code 2-5601), declares all the purposes for which debts may be assumed by or on behalf of the State, and expressly prohibits the State from assuming any other debts. An agreement between the Commissioner of Agriculture and an individual, whereby the commissioner in consideration of an assignment to him of a number of leases to lands on which the State farm market is located, promises to pay the assignor, in addition to the consideration expressed in the assignment, $100 per month for a period of several years, is a debt inhibited by the above provision of the constitution, and can not be enforced."
The debts against the State that can be created (by contract or otherwise) are named in the Constitution, 2-5601, supra, and all others are expressly prohibited.
In applying this constitutional provision, the Supreme Court used the following language in the Barwick case, sup,ra, at page 658:
"Elaborate definition of the word 'debt' as used in the constitution is altogether unnecessary. There is hardly an adult layman in the State who does not understand fully the meaning of that word as so used. It means any obligation of the State to pay money or other thing of value, which obligation arises the very moment that it is undertaken, and continues until discharged by payment. . . ." [emphasis added]
And, again at page 661, the court stated:
"With the language of the constitution clear and unambiguous, it is the duty of every one to obey it. It must not be forgotten that the people are the sovereigns, and the State officers are but their agents elected to represent them. The former are the masters; the latter the servants. The sovereign people have seen fit to prohibit the State and its officers from incurring debts, except those defined in the constitution. To allow State officers directly or indirectly to circumvent this consti'tutional restriction made by the people for their own protection would be to exalt the agent above his principal, the servant above his master; and thus to undermine the foundation upon which free government must rest. This debt limitation was written in the constitution to be obeyed. The courts must uphold it in the spirit in which it was adopted, and no scheme or subterfuge designed to nullify this important constitutional mandate shall receive the approval of the courts."
I should like also to call your attention to another Supreme Court decision which I believe is applicable to the situation. In the case of State of Georgia v. Blasingame, 212 Ga. 222 (1956), the court held

223.
that a 1951 Act authorizing the State Highway Department to contract with the Ocean Highway and Port Authority (a Florida authority) for the construction and operation of a toll road and a contract executed pursuant to that Act offended the Constitution ( 2-5601, supra), and were therefore void.
The obligation of the State to pay the telephone company as proposed by the contract to which you have reference does not fall within any of the purposes for which the Constitution authorizes the creation of a debt. As stated by you in your letter to me, the contemplated contract would obligate the State Department of Education to pay Southern Bell Telephone and Telegraph Company over a period of ten years. Therefore, it would constitute a debt and is prohibited by the Constitution, being violative of 2-5601, sup,ra. Hence, such a contract under conditions as described by you would be unconstitutional and void.
Aug. 6, 1963
OPINION TO THE STATE BOARD OF COSMETOLOGY
In your letter you ask to be advised :
1. If the Georgia State Board of Cosmetology is bound by or controlled by a fiscal year limitation. You point out that H.B. 225 (Georgia Laws 1963, pp. 49-56) creating your Board became effective on May 1, 1963 and authorizes the Board to work sixty-five (65) days per annum. You ask if the sixty-five (65) day limitation runs from May 1, 1963 through April 30, 1964, or whether the Board is limited to eleven (11) days for the months of May and June, 1963, and then start a new sixty-five (65) working-day cycle beginning on July 1, 1963 and ending June 30, 1964?
2. If members of the Board are entitled to receive actual travel expenses, together with other expenses incurred while carrying out the duties of the Board, or are they bound by the so-called "Mileage Act" of 1962 (Georgia Laws 1962, p. 710)?
1. In answer to your first question your attention is called to Georgia Code Ann. 89-901, which provides:
"89-901. Fiscal Year; Accounts of Officers.-The fiscal year in this State shall commence on the first day of July, and shall end on the 30th day of June of each year, and all public officers of this State shall keep their official accounts in accordance therewith.
"The fiscal year for all units of the State Government shall begin on July 1, and shall end on June 30 of each year, and shall be uniform for all State Departments, Boards, Bureaus, Commissions, Institutions and other agencies.
"All public officers shall conform to the fiscal year as established hereby in reporting and recording the financial oper-

224
ations of their respective offices and departments." (emphasis supplied)
Without going into the confusion that would naturally result if the various departments, boards, bureaus, institutions and agencies of the State had different fiscal years, and the further fact that the appropriations for the various branches of the State Government are made on the premise of a uniform fiscal year, you are advised that, in my opinion, there is no provision in H. B. 225 creating the Georgia State Board of Cosmetology that would indicate that your Board is exempted from the unified fiscal year provision of 89-901 quoted above.
Coming now to the specific question involved, that is, is the Board limited to a pro rata number of days of service during the months of May and June, 1963, before the new fiscal year begins, 4 of H. B. 225 provides :
"The Board shall meet not more than sixty-five (65) days per annum for the purpose of holding examinations, adopting rules and regulations, passing of applications and qualifications, or other matters pertaining to duties of said Board."
Nowhere is there a provision that the Board is limited to any specific number of days of service in a given month, nor a requirement that the Board serve any specific number of days per month. Had the Legislature seen fit, such provisions could have been included.
However, the Legislature left the date and number of meetings to the discretion of the Board except for the requirement contained in 9 that examinations be held quarterly throughout the State, and the limitation of sixty-five (65) days of service per annum by the Board.
It would therefore appear that members of the Board who served fifteen days during May and June are entitled to be paid the compensation provided by the Act upon presentation of proper vouchers therefor.
2. Section 6 of H. B. 225 provides:
'Each member of said Board shall receive a compensation of twenty ($20.00) dollars per day for actual services, and in addition thereto, actual expenses while in attendance upon meetings of the Board, and actual traveling expenses, which compensation shall be paid out of monies collected under the provisions of this Act, after an allowance thereof by the Board upon an itemized and verified claim therefor, approved by the Chairman of the Board and by the Joint Secretary, by the member claiming same. In no event shall any part of the expenses of the Board or any member thereof be paid out of any other fund."
While the language of 6 is not entirely clear and does not define "actual expense while in attendance upon meetings of the Board," and "actual traveling expenses," in view of the provision of

225
the Act approved March 7, 1962 (Georgia Laws 1962, p. 710) I am of the opinion that the term "actual traveling expenses" should be interpreted to mean the actual cost of railroad, bus, or other public transportation ticket or fare, where public transportation facilities are used, and the legal rate of eight cents a mile where private automobile is used.
One thing is eminently clear from the language of 6 of H. B. 225, and that is that the expense voucher of the Board member must be itemized and verified by the member presenting it for payment, must be approved by the Chairman of the Board and by the Joint Secretary, and the payment thereof should be allowed by the Board. The itemization of expense vouchers is further required by 84-102, Georgia Code Annotated, which provides in the last sentence thereof:
"All expense vouchers shall in each case be itemized, approved by the Chairman of each respective Board, or on expense vouchers of the Georgia State Board of Funeral Services by three members of the Georgia State Board of Funeral Services, and presented to the Joint Secretary for payment."
I am therefore of the opinion that Board member while carrying out his duties as such and while attending meetings of the Board is entitled to actual expenses while away from home, such as meals, lodging, official telephone calls and other expenses actually incurred in the performance of his official duties; and if travel is by privately owned automobile, he is entitled to the sum of eight cents per mile for the distance traveled on official business; otherwise, travel expense is limited to the amount actually paid out to public transportation facilities.
August 7, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge your request of recent date for an opinion on the following questions:
"1. In a county where there is an independent city school sytem, is a resident of the area included within the independent district eligible to be a candidate for the office of county school superintendent in the primary and general election?
"2. If, after election to the office of county school superintendent, the superintendent should move into the area included within the independent district, will he then be eligible to run for office to succeed himself?"
Section 89-101, paragraph seven, of the Georgia Code Annotated, provides:
"No person shall be eligible to hold any county office in any county unless he shall have been bona fide a citizen of the

226
county in which he shall be elected or appointed at least two years prior to his election or appointment, and is a qualified voter entitled to vote: Provided, however, that any person who shall have been a bona fide citizen of a county for two years shall be eligible to be elected or appointed as county school superintendent, even though said person should not reside in that part of the county which is under the supervision of the county superintendent of schools and ineligible to vote in the election for such superintendent of schools."
The question of eligibility is determined as of the time of election. Hulgan v. Thornton, 205 Ga. 753-757 (1949), holds: "As to the time at which a person's eligibility for public office is determined, this court has consistently fixed it as the date of election...."
Therefore, if the qualifications exist at the time of the election, a person would continue to be eligible unless there is a change in those qualifications.
In view of the provisions of law herein cited, each of the above questions is answered in the affirmative.
I wrote an unofficial opinion on June 28, 1963, which deals with the questions you have propounded. I am enclosing a copy of this opinion for your information.

August 8, 1963

OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA

I wish to acknowledge your recent letter in which you requested

my opinion as to whether Georgia Tech had fulfilled its obligation

under the employment contract with Mr. G

. H.

., or

whether Georgia Tech is legally obligated to make an additional pay-

ment to Mr. H---

We have reviewed the contract entered into between the Georgia Institute of Technology and Mr. G--. H--. under date of April
26, 1962, together with correspondence in your file turned over to me.

The notice of appointment given to Mr. H

. by the Board of

Regents of the University System of Georgia by and through the

President of Georgia Tech and accepted by Mr. H

., indicates

the approval of his appointment as an instructor in Industrial Man-

agement (Classification B). Classification B referred to in the foot-

notes of the contract indicates that the employment was for an

academic year of three quarters. The contract itself states:

"The period of your appointment is from September 1,
1962 to June 30, 1963 Budget Position No. 26. Your compensation will be $5,200 payable over a period of 12 months
beginning September 1, 1962. . . . This appointment is made subject to the statutes of the Institution by which you are em-

227

ployed and to the by-laws and regulations of the Board of Regents. . . ."

The notice of appointment was dated April 16, 1962, signed by the President of the Institution and was formally accepted by Mr. G.--.
H . . on April 26, 1962.

Even though the contract indicates under the designation "Classification B" that the academic year is to be for three quarters, there is no provision for pro rata payment for part performance under the
contract is divisible, compensable units of quarters, months, weeks or
days. The portion of the contract which provides that the compensation of $5,200 will be payable over a period of twelve months, begin-
ning September 1, 1962, is obviously for the mere purpose of convenience and not for the purpose of establishing divisible compensable units that could be used in prorating compensation in a case of part
performance.

It is true that the appointment contract was made subject to the statutes of the Institution, and that the statutes of the Georgia Institute of Technology, Article VII, secion C-1-b, read as follows:

"If the contract of a member of the faculty who has been appointed on a three quarter basis should be legally terminated, he shall receive as his total compensation a proportional part of his basic salary which shall not be less than the proportional part of the three quarters during which he has rendered service."

However, it is clear from the file of correspondence between Mr.

H

. and Dr. Harrison, President of the Institution, that Mr.

H

.'s contract was not legally terminated but Mr. H

.

was granted a leave of absence, and therefore, the statute involved

would not be applicable. In any event, in my opinion, the statute is

not of any definite help legally in determining what is "the propor-

tional part of the three quarters during which he has rendered

serviee."

The contract, in my opinion, likewise provides no legal basis for

assuming that because the period of appointment covered ten months

that in the event of part performance compensation should be pro-

rated on a monthly basis as contended by Mr. H

. instead of on

a monthly basis as contended by Georgia Tech. There is, however,

one basis for prorating compensation in the event of part perform-

ance that in my opinion is fair and reasonable and definite and ir-

refutable, and that is on the basis of the total number of days of

classes actually taught and days upon which examinations were given

out of the total number of days of classes to be taught and days upon

which examinations were to be given during the entire academic year

of 1962-63.

Mr. H

. was employed by contract by Georgia Tech for an

academic year within the period from September 1, 1962 to June 30,

1963, for which he was to be paid a total of $5,200 for the total class-

room days, plus examination days. Mr. H

., in his letter of June

27, 1963, admits that "under the basic rules of contracts, payment is

228

made for actual performance." What better basis could be used to

determine actual performance under a partly performed contract than

to use the total number of classroom days of teaching, plus the num-

ber of days for examinations during which Mr. H

. actually

performed his contract with Georgia Tech?

We have been advised by Georgia Tech that during the period for

which Mr. H

. was under contract with Tech there were 180

classroom days, plus 15 examination days divided into quarters as

follows:

Quarter Fall of 1962 Winter of 1963 Spring of 1963

Classroom Days Examination Days

62

5

58

5

60

5

It is obvious that Mr. H

. actually worked and performed

67 days during the Fall Quarter of 1962, during the period his con-

tract of employment with Georgia Tech called for a performance of

195 class room and examination days.

It is my official opinion that Georgia Tech is legally obligated to

pay Mr. G

. H

. an amount of money which is that pro-

portion of $5,200, which the total number of days actually worked

by Mr. H

. during the Fall Quarter bears to the total number

of classroom and examination days for that entire academic year.

August 9, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge and reply to your letter concerning certain areas of responsibility of the State Department of Corrections.
You ask if there are other areas which, by law, are the responsibility of the Department of Corrections other than vocational training.
You state in your letter that:
"Governor Carl E. Sanders and Mr. Fred Hallford, Director of the Board of Corrections, have asked the Georgia Vocational Rehabilitation Agency to provide services to inmates of the Georgia Industrial Institute who meet the criteria of eligibility for vocational rehabilitation. A rather comprehensive study of the situation at the Institute has been made by the Vocational Rehabilitation Agency which revealed that at least one third of the population is both eligible and feasible for services." You further state:
"There is no question in our mind as to the Agency's providing (a) medical and psychological diagnosis, (b) social and vocational evaluation, (c) pre-vocational training, (d) counseling and guidance, (e) job placement and follow up, along with

229
other services needed to place each client in employment after being discharged from the Georgia Industrial Institute. It is our opinion that the Vocational Rehabilitation Agency cannot provide vocational training because of the statute stipulating that this is to be provided by the Board of Corrections-Section 4 (a)-Laws and Regulations Governing the Georgia Penal System. Federal regulations will not allow the Vocational Rehabilitation Agency to duplicate services, which by law are the responsibility of another State Agency."
You then ask me to make a survey of the statutes for the purpose of determining if there are other areas of service, other than vocational training, which by law are the responsibility of the Board of Corrections in developing the cooperative rehabilitation program at the Georgia Industrial Institution.
In several instances, Title 77 of the Georgia Code Annotated mentions "rehabilitative treatment, needs, etc."
Section 77-317 of Georgia Code Annotated provides for a rehabilitative program which shall include (other than, and in addition to, vocational training), the following: academic, industrial, mechanical and agricultural training.
Section 77-307 provides that the Board of Corrections shall adopt rules and regulations governing prisoner rehabilitation; however, 77-317, sup,ra, is not a regulation promulgated by the Board, but is a statute and 77-310 (B) of Code provides that juvenile offenders under eighteen years of age may be transferred to separate camps or institutions or to the State Training School for Boys or Girls, where, of course, they would receive, or could receive the various types of training as specified in 77-317, supra.
In Chapter VI of Laws and Regulations governing the Georgia Penal System, it is stated in Paragraph A that the general policy and purpose of the State Board of Corrections is to provide rehabilitative treatment of prisoners.
Chapter VI, Para. B, subparagraph 1 (c), of the rules and regulations, supra, provides that each officer and employer shall be responsible for the rehabilitative supervision of all prisoners assigned to him.
Said rules and regulations further provide inCh. VI, Para. J. thereof, that prisoners be provided with job training in keeping with their rehabilitative needs.
Paragraph K, Ch. VI, provides that the Board of Corrections shall make educational courses available to prisoners in the county camps under and with the cooperation of the warden.
Therefore, after reviewing the statutes and regulations relating to the Department of Corrections and the department's rehabilitation program, I find that said department is authorized to provide prisoners with vocational training, and in addition, to provide training in the following fields:

230
1. Academic 2. Industrial 3. Mechanical 4. Agricultural 5. Educational (which could include almost
any type of instruction or training).
August 12, 1963
OPINION TO THE DEPARTMENT OF INDUSTRY & TRADE
This office has received your letter in which you request an opinion as to the legality of accepting from various private organizations an augmentation to be used to increase the salary of the Director of your Industry Division in excess of the present scale set by the State Merit System for that particular position.
The Act which creates your Department as it presently exists is found on page 964, Georgia Laws 1962, and is entitled "Department of Industry and Trade-Successor to Department of Commerce." Section 10 of this Act provides for the acceptance of gifts "from ... any . . . organization, public or private, and any individual or groups of individuals" to be "used by the board to pay the expenses and costs of the operation of the department." (Section 11.)
The salaries of the members of your Department would certainly be a proper expense or cost of the operation of the Department. Since the Act sets no specific compensation for the position of Director of the Industry Division, and since the Act establishing the State Merit System is not contravened, I find nothing illegal in the proposed augmentation, provided, however, the Board of Commissioners of your Department takes the required and appropriate action toward this end.
Two sections of the "Transactions With State" Act (Georgia Laws 1959, page 34) were carefully considered by me before rendering this opinion. They are 3 and 18, as follows :
"Section 3. Officer or other person accepting remunerations in addition to compensation provided by law. Whoever, being an officer, employee, or agent, of the State of Georgia, or any agency thereof, accepts money, or anything of value, in addition to his legally authorized compensation, from any source, as an inducement to perform his duty, or to refrain from performing his duty, shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year, nor more than 20 years."
"Section 18. Offer to Officer or other person. Whoever promises, offers, or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for

231
the delivery or conveyance of anything of value to any officer or employee or person acting for or on behalf of the State of Georgia, or agency thereof, in any official function, under or by authority of any such agency or to any officer or person acting for or on behalf of either house of the General Assembly, or of any committee of either house, or both houses thereof, with intent to influence his decision thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding, which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud on the State of Georgia, or to induce him to do or omit to do any act in violation of his lawful duty, shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year nor more than 20 years."
However, I do not believe these sections would prohibit the proposed practice if done through the Board. I specifically decline at this time to answer the question of whether or not such a practice would violate the spirit of this Act even though it does not violate the letter.
August 16, 1963
OPINION TO THE BOARD OF CORRECTIONS
You request my opinion on whether a prison physician is obligated to continue treatment after rendering initial emergency care to a prison employee.
In reply, I call your attention to Georgia Code Ann. 84-930 which reads as follows:
"RELIEF FROM CIVIL LIABILITY OF PRACTITIONERS RENDERING EMERGENCY CARE.- Any person, including those licensed to practice medicine and surgery pursuant to the provisions of this Chapter, and including any person licensed to render service ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor, shall not be liable for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person. (Acts 1962, p. 534) ."
This statute seems directly on point provided certain conditions are met. I am assuming that the physician's contract with the State relates only to the treatment of inmates. If the contract covers treatment of prison authorities, the physician is contractually bound to continue treatment.

232
This opinion also assumes that the physician is receiving no additional compensation from the State or the employee for rendering such service.
Subject to the above mentioned limitations, it is my opinion that the physician rendering emergency treatment is not obligated to continue such care until recovery.
August 19, 1963
OPINION TO THE GOVERNOR
In your letter you enclosed a letter from former Governor Ernest Vandiver, and also a plat of certain property adjoining right-of-way property of the Western and Atlantic Railway Commission, such property being known commonly as the "Peachtree" Arcade property. You requested we investigate the matter in an effort to determine and confirm the exact location of the property lines between the Western and Atlantic right-of-way and the Arcade property. The Arcade property has been purchased by the First National Bank which wishes to construct a multi-story office building. The plat, a copy of which :is attached hereto, was executed by Honorable H. V. Fitzpatrick, Civil Engineer, and he has certified the right-of-way line as represented thereon was fixed in conformity with the findings of the "Hopkins" Commission.
In order to fully understand the situation concerning the right-ofway line, a familiarity with a certain amount of background information is necessary. Without completely documenting the point, it is recognized that the State of Georgia, as owner of the Western and Atlantic Railway, has a right of way one hundred feet in width along adjoining area in question. (In order to gain all details, reference should be made to WESTERN AND ATLANTIC RAILROAD of the STATE OF GEORGIA, compiled by James Houstoun Johnston and copyrighted in 1932 by the Georgia Public Service Commission, the book having been written pursuant to a Resolution of the General Assembly, approved August 25, 1925. Later references to this volume will be simply to "History.") However, though the adjoining property owners on each side of the right of way have, since 1875, continually recognized this point, there has been an almost continuous dispute as to the exact physical location of these one hundred feet on the ground itself.
The particular tract in question (the Arcade property) was first in dispute in 1872, when the heirs of Daniel Dougherty brought suit against the Western and Atlantic Railroad Company contending the Western and Atlantic was only entitled to a sixty-six foot width right of way. This was ultimately decided adversely to the Dougherty claimants, and the decision established that one hundred feet was the correct width. (Dougherty v. Western & Atl. R.R., 53 Ga. 304 (1874) .) However, the exact location on the ground still remained a subject of controversy.

233
Because of assertions of the Central Railroad and Banking Company of Georgia to property on the opposite side of the right of way and resultant litigation, the General Assembly, by joint resolution approved December 18, 1894, authorized the Governor to create a special Commission to hear and finally determine all issues of law and fact. This Commission later became known as the "Hopkins Commission" because of its Chairman, John L. Hopkins, and its findings are those to which Mr. Fitzpatrick makes reference on the plat. The Commission, while not directly concerned with the property under review, in order to establish the lines, established the North edge of the right of way from which to measure across one hundred feet and locate the South edge. It conducted extensive hearings and its findings were delivered October 4, 1895. (They were published by the State, but there seems to remain only one copy in existence, which may be found in the State Library.) The findings, as quoted in the History on page 127 were :
"'The right of way of the Western & Atlantic Railroad, which was granted to the State of Georgia by Samuel Mitchell by deed dated July 12, 1842, was designated by C. F. M. Garnett, the Chief Engineer of said road, and as thus designated, the part thereof which is involved in this controversy between Forsyth and Whitehall Streets, in the City of Atlanta was and is as follows: It was one hundred feet in width; the northeastern boundary of said right of way is a straight line beginning at the southwestern corner of Lot Number One (1), as shown on Vincent's map of the City of Atlanta; thence along the southwestern line of town lot No. 12 and the lot between that and Broad Street, touching the south corner of the northeast abutment of Broad Street bridge at the foundation thereof, and on to the north line of land lot No. 77; the southwestern boundary was determined and designated by a parallel line with the northeastern boundary, and one hundred feet distant southwestwardly, said one hundred feet being measured at right angles to said line.' "
The findings seemed to have settled the question, but in 1918, the Dougherty property again became the subject of controversy between the Flynn Realty Company which had acquired title, and the State of Georgia. Summarized, there arose a dispute over a three foot strip between the property line as claimed by Flynn Realty and as contended by the State. Flynn, which was in the process of constructing the present Peachtree Arcade Building, wanted to build along the foundation line of the Old National Hotel, then known as the SteinerEmery Building. The State insisted the new building should be erected on a line substantially 3 feet north of the old foundation line. In order to proceed with construction without interruption, Flynn temporarily receded, and the building was set back, but the point was not at that time resolved being a continual point of disagreement. Later, in 1931, the Central of Georgia Railway Company, which then owned the property on the south side of the right of way at this point, asserted a claim to a line which, if the contentions of both the Central of Georgia and Flynn Realty were correct, would have left the State of Georgia with only ninety-seven feet for a right of way. The State

234
decided to bring an action joining both Central and Flynn in order to have a judicial determination, but for reasons which are unknown, the suit was not instituted and the point was never resolved.
In 1955, the First National Bank acquired title to the Arcade property on the north side of the right of way. It thus would have acquired any claim which its predecessors in title, or Flynn Realty, might have had.
In examining the plat, it can be seen the right of way and property line is represented as running from the southwest corner of City Lot No. 1, to the south corner of the Broad Street Viaduct abutment. It thus represents the Arcade building as being only 1 3/4 inches clear of the property line at the Broad Street corner. The line in relation to the points conforms completely to the description as found by the Hopkins Commission. In connection with the Arcade building, it conforms to the assertions of the State in 1918 when the present Arcade building was being constructed. Or stated otherwise, it amounts to a renunciation of the claim which was being made by Flynn Realty Company at that time, and is a relinquishment of a claim, valid or otherwise, to a strip of approximately three feet in width. As such there is certainly no detriment to the State or its interests, but the plat and its representations rather are very advantageous to the State.
In order that a better understanding be secured, we contacted Mr. Fitzpatrick to ascertain the exact procedures by which he arrived at the representations on his plat. Together with him, we also made a physical inspection of the actual property and feel the plat to be entirely true and correct in its reflections of actual ground conditions. The permanence of the bridge abutment is unquestioned, and the City Lot corner is marked by a brass plate, permanently embedded in concrete on the paving under the Whitehall Street viaduct. (Though it had no bearing upon my opinion and was learned only after we had arrived at our conclusions, I am informed the Lawyers Title Insurance Corporation has insured the title to the property as represented by Mr. Fitzpatrick. As you know, this they would not do if there were any hint of irregularity or error in the property title chain.)
Therefore I am of the opinion the property line and right of way line as represented on the plat is a true and correct representation of the property, and accurately reflects the right of way lines as established by the Hopkins Commission.
August 22, 1963
OPINION TO THE STONE MOUNTAIN MEMORIAL ASSOCIATION
In your letter you requested that I advise you whether or not there would be a violation of any statutes should the Stone Mountain Memorial Association purchase all or any part of the assets of Stone Mountain Plantation, Inc., which had previously contracted to furnish

235
and operate certain ante bellum houses and buildings, including a "country store" and "antique store." Mrs. Christy K. McWhorter is the principal stockholder in the corporation, and the remaining stockholders are Alvin Barge and William Starke. You also enclosed a photostatic copy of the present contract.
First, there is no question of the authority of the Association to make such purchases as are contemplated. The Act creating the Stone Mountain Memorial Association (Georgia Laws 1955, p. 61) grants extremely broad powers in this regard. Quoting from 5, paragraph (c), the Association is given power:
"To acquire, by purchase, lease or otherwise, and to hold, lease and dispose of in any manner, real and personal property of every kind and character for its corporate purposes."
It can be readily seen that a violation, if any, by the proposed transaction, would have to be of some other law.
There are only two statutes which I feel could be considered as even remotely concerned, i.e., the "Honesty Bill" (Georgia Laws 1959, p. 34) and the "Transactions with the State Act" (Georgia Laws 1956, p. 333). Examination reveals the "Honesty Bill" to be wholly inapplicable, and the "Transactions Act" is directed toward and refers to "full-time appointive State officials or employees" who might benefit or be likely to benefit from prohibited transactions. Investigation shows that none of the stockholders of Stone Mountain Plantation, Inc. are in any way connected with the Memorial Association, and being obviously not full-time officials or employees, the "Transactions Act" could have no bearing on the proposed purchases from their corporation.
I have closely reviewed the present contract between the Association and Stone Mountain Plantation, Inc., and find that document, by paragraph 4, anticipates and makes provision for purchase of furnishings, furniture and draperies from Plantation, Inc. by the Association.
Therefore, it is my opinion there is no statute which would prohibit the purchases being considered, and should the Association desire to proceed with such a venture, such would be based upon terms of a valid contract and completely within the legal authority of the Association. In view of the fact I am also a member of the Stone Mountain Memorial Association, I would like to emphasize this opinion relates solely to the legal aspects of the question propounded, and is not in any way an expression in my capacity as an Association member.
August 22, 1963
OPINION TO THE DEPARTMENT OF BANKING
You request an official opinion as to the legality of private banks expanding their banking operations to the extent of offering to the

236
public general banking services at locations other than the presently existing principal or main office in view of the language contained in 13-204, Georgia Code Annotated (Georgia Laws 1960, page 1170).
Although the Banking Law of Georgia does not define private banks as such, on page 5 of Park's Banking Law of Georgia is the following:
"A private person, firm, or unincorporated company who conducts the business of banking without a charter and without any special privilege or authority of law is a private banker. Such a bank has no capital stock as is required for a regular bank. Deposits in such a bank are simply loans to the banker on his individual credit." Moyer on Banks and Banking, page 23.
Section 1 of the Banking Law of Georgia, as amended in 1960, Georgia Laws 1960, page 67, unofficially codified as Georgia Code Ann. 13-201, provides.
"The term 'bank' as used in this Title, . . . unless the context otherwise indicates, shall not include private bankers, partnerships or voluntary associations doing a banking business...."
Thereafter follows a specific enumeration of certain sections of the Banking Law which have application to private and national banks as well as state banks.
Section 13-201.1 entitled "OTHER DEFINITIONS" contains Subparagraph (f) as follows:
"(f) The term 'bank' as defined in section 13-201 of the Code of Georgia (Article I, Section 1 of the Banking Law) as used elsewhere in this Title, shall include 'bank office,' 'bank facility,' 'parent bank,' and 'branch bank', unless the context indicates that it does not."
Although this section was amended in its entirety by the 1963 Legislature, this particular Subparagraph remained verbatim as originally passed in 1960. The 1960 General Assembly also passed House Bill No. 708 entitled "BANKS AND BANKING- NEW PRIVATE BANKS PROHIBITED,'' the caption of which stated:
"An Act to amend Section 4 of Article I of the Banking Law of Georgia as the same is codified in Section 13-204 of the Code of Georgia relating to the regulation of private banks, so as to prohibit any new or additional private banks or bankers; to repeal conflicting laws and for other purposes." As now codified, subsection (a), 13-204, reads as follows:
"No individual, partnership, person, firm, company, or voluntary association, shall carry on or conduct a banking business in this state without being chartered and organized under the Banking Laws of this State or of the United States; provided, however, any private bank or banker lawfully engaged in the banking business prior to the adoption of this section

237
may, upon being in compliance with subsections (b), (c) and (d) hereof and the other provisions of this Title applicable to private banks or bankers, continue to conduct a banking business in the same city, town or community in which he is presently situated and doing a banking business, including the continuous operation of any presently existing private bank by heirs, executors or assigns."
Therefore, employing the well settled rule of statutory construction and interpretation, it is my official opinion that the 1960 Act was designed to prevent the establishment of any new or additional private banks and shall properly be interpreted as prohibiting any new or additional private banks, private bank offices, private bank facilities, private parent banks, and private branch banks unless lawfully established and conducting a banking business prior to the adoption of the Act on March 24, 1960. For this reason, any private bank or included type of operation beginning business after March 24, 1960, whether or not with the same name and ownership as a lawfully existing private bank, would constitute an illegal operation.
August 26, 1963
OPINION TO THE GAME AND FISH COMMISSION
This will acknowledge receipt of your request for my opinion concerning the authority of the Game and Fish Commission to adopt rules and regulations relative to the use of firearms and alcoholic beverages on and around High Falls Lake, and the general authority of the Commission to enact rules and regulations to restrict the use of alcoholic beverages and firearms on State property.
Georgia Laws 1955, page 483, and in particular that portion found in Georgia Code Ann. 45-114, provides in part:
"45-114. Duties of commission; rules and regulations; cooperative agreements. The commission is hereby directed and authorized to perform the following duties and functions:
"1. Acquire by purchase, condemnation, lease, agreement, gift or devise, lands or waters suitable for the purposes herein enumerated, and develop, operate and maintain the same for the following purposes:
"(a) For fish hatcheries, nursery ponds, or game farms, sanctuaries, reservations, and refuges:
"(b) Lands or waters suitable for wildlife restoration, propagation, protection or management:
"(c) For public hunting, fishing or trapping areas, to provide places where the public may hunt, trap or fish in accordance with the provisions of law or the rules and regulations of the commission.

238
"2. To fix bag and creel limits and to fix open and closed seasons for all wildlife on a statewide, regional, or local basis, as they may find to be appropriate, execpt as otherwise provided by law.
"3. To regulate the manner, method, ways, means and devices of killing, taking, capturing, transporting, storing, sell.:. ing, using, and consuming wildlife, except as otherwise provided by law.
"4. To capture, propagate, transport, buy, sell or exchange any species of wildlife needed for propagation or stocking purposes, and to exercise control measures of undesirable species.
"5. To designate by the promulgation of rules and regulations the wildlife that shall be called game animals, furbearing animals, game birds, game fowl and game fish.
"6. To promulgate rules and regulations for purposes herein set out.
"7. To prohibit anyone from entering or being on any State game refuge while under the influence of drugs, intoxicating liquors, beers, wines, or other beverages.
"8. To designate, if any, what non-game birds, their nest and eggs can be taken, captured, killed or possessed at any time.
"9. To enter into cooperative agreements with educational institutions and State and Federal and other agencies to promote wildlife. management and conservation."
In Briggs v. State, 80 Ga. App. 664 (1949), the Court of Appeals affirmed a conviction for the violation of a rule and regulation of the Game and Fish Commission.
Flynn v. State, 88 Ga. App. 52, 56 (1953) clearly stated the law by saying:
"On the other hand, where the State Constitution expressly gives to the legislature the power to delegate its lawmaking authority, regulations of administrative bodies in conformity with the statute enacted under such express constitutional sanction are valid." (Citing: Maner v. Dykes, 55 Ga. App. 436 (1937) and Briggs v. State, supra.)
From the above, I am of the opinion that the Game and Fish Commission is clearly authorized to adopt and enforce rules and regulations restricting the use of alcohol and firearms on State property, and in particular, property such as the above that is acquired as a public hunting area.
August 27, 1963
CITY AD VALOREM TAX
This will acknowledge your letter in which you asked the question, "who is responsible for the taxes on stored cotton, peanuts and grain," where the Government pays the storage charges.

239
The Constitution of the State of Georgia, Article VII, Section I, Paragraph IV (Georgia Code Ann. 2-5404), provides in part:
"The General Assembly shall further have power to exempt from taxation, farm products, including baled cotton grown in this State and remaining in the hands of the producers, but not longer than for the year next after their production."
The General Assembly implemented this constitutional provision as found in Georgia Code Ann. 92-201, which provides:
"The following described property shall be exempt from taxation, to wit: ...... farm products, including baled cotton grown in this state and remaining in the hands of the producer, but not longer than for the year next after their production."
A further restriction of taxation of farm products, by a municipal corporation, is found in Georgia Code Ann. 92-4108.
The inability of a State or any political subdivision thereof to ta.'C the property of the Federal Government is a well established principle of law.
As farm products within the hands of the producer, within the year next after their production, and all property within the scope of Federal ownership are exempt from taxation, farm products owned by the producer and stored by the Federal Government are not within the classification of properties taxable by a municipal corporation.
August 29, 1963
OPINION TO THE DEPARTMENT OF BANKING
You requested an official opinion as to the legality of a private corporation using the name Consolidated Bankers of Georgia, Inc.
On November 7, 1958, I rendered an official opinion to the Honorable A. P. Persons, Ops. Att'y Gen. 32 (1958-59), concerning substantially the same problem, the names in question being slightly different. In that opinion I cited the following sections of the Georgia Code Ann.:
"13-204. No person, firm or voluntary association, or private corporation, other than a regularly chartered and organized bank, shall use the words 'bank', 'banker', 'banking company', 'banking house' or any other similiar name indicating that the business done is that of a bank. ..."
"13-9934. Any private person, or the members of any firm or voluntary association engaged in the business of banking who shall violate the provisions of Section 13-204, shall be guilty of a misdemeanor."

240
Further quoting from that opinion:
"Under these provisions of the Code, I am of the opinion that the name proposed to be used by Mr. Dettelbach, 'Georgia Bank Investment Corporation,' may not lawfully be applied to a corporation which is not a regularly chartered and organized bank. Code Section 13-204 expressly prohibits the use of the word 'bank'. I cannot agree with Mr. Dettelbach's statement that this word is used 'only as descriptive of the investment corporation business'. The name is of such a character that it may tend to confuse and mislead members of the public as to the nature of the business transacted, and hence would fall under the express prohibition of Section 13-204."
Therefore, the situation presented in your request would constitute a violation of the Act. Further use of the name would probably be prevented by a civil action seeking injunctive relief. Any criminal action under Code 13-9934 would hinge on the question of whether or not a banking business was actually being conducted.
August 29, 1963
OPINION TO THE BOARD OF CORRECTIONS
Your letter requesting my opinion concerning the Board of Corrections' regulatory powers has been received. Your inquiry is specifically directed to the authority of the Board of Corrections to adopt a policy under which the Director may designate penal systems other than those operated by the Board as places of confinement for service of state sentences when concurrent sentences are imposed. This practice would enable a prisoner to earn all possible good time even though not actually serving his sentence in a state institution.
My opinion to you of June 10, 1963 officially advised that a prisoner cannot demand as a matter of right credit for statutory and extra good time while serving a concurrent sentence in a non-state institution. Nonetheless, Georgia Code Ann. 77-320 (Georgia Laws 1956, pages 161, 178), provides that "the State Board of Corrections shall formulate rules and regulations providing for extra good time allowances in addition to the statutory good time hereafter provided." This is sufficient authority for adoption of the indicated policy.
Further, in answer to the second question contained in your letter, there are no statutes which would prohibit the Board from making the regulation "nunc pro tunc," thereby permitting the application of the regulation to the initial date of state sentences now being served concurrently with a non-state sentence in a non-state penal system.

241
August 29, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion concerning the authority of State Revenue enforcement officers to seize vehicles used to transport non-taxpaid whiskey and whether or not such officers would be entitled to any special fees.
The General Assembly of Georgia in the 1963 Session passed an Act to authorize special agents and enforcement officers of the Revenue Department to seize and hold articles of contraband. (Georgia Laws 1963, p. 135.) The Act provided that persons appointed by the State Revenue Commissioner as special agents or enforcement officers of the Revenue Department in the enforcement of the laws of the State with respect to the manufacture, transportation, distribution, sale, or possession of liquor, wine, or beer, shall have the authority throughout the State to seize and take possession of all property which is declared contraband under such laws.
Georgia Code Ann. 58-207, as amended, provides that all vehicles and conveyances which are used to convey any liquors or beverages the transportation of which is in violation of the laws of the State shall be seized and condemned by any sheriff or other arresting officer, who shall report the same within ten days after said seizure to the Solicitor of the county, city, or superior court having jurisdiction in the county where the seizure was made. In the event that the vehicle is ordered sold by the court, the proceeds arising from said sale shall be applied first to the payment of the expenses in said case, including the expenses incurred in the seizure and "one-third of the remainder to the officer making the seizure and furnishing the proof," provided such seizing officer reported the seizure to the proper prosecuting official within ten days from the seizure.
The Georgia Court of Appeals, in the case of Cloud v. DeKalb County, 70 Ga. App. 777 (1944), held that the mere fact that a county policeman receives a salary does not preclude him from receiving his part of the fees provided by law for the officers who make the cases and furniah the evidence for the confiscation of vehicles engaged in the illegal transportation of liquor. The Court stated on page 780:
"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 sums 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 would become the property of the county."

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It is my opinion that, based upon the above-cited authorities, the special agents and enforcement officers designated by the State Revenue Commissioner for the enforcement of the laws of the State with respect to the transportation and possession of non-taxpaid liquors are authorized to seize and take possession of contraband vehicles and would be entitled according to the provisions of 58~207 to receive the special fees provided therein.
August 29, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion concerning the sale of cigarettes and cigars tax-free to the Georgia National Guard.
The Georgia Tobacco Tax Laws are unofficially codified in Chapter 92-22 of the Georgia Code Annotated. The tobacco tax provided for in that Act is imposed on every person selling cigars and cigarettes or possessing the same for sale ( 92-2202) and specifically provides as follows:
"The taxes imposed by this Chapter are hereby levied with respect to sales of cigars or cigarettes to the State Government or any department, institution, or agency thereof, and to the political subdivisions of this State, and their departments, institutions and agencies."
The Attorney General of Georgia in an official opinion dated April :24, 1963, held that the National Guard is a State entity until called into the active service of the United States and that purchases by the National Guard are purchases by the State. See Lederhouse v. United States, 126 F. Supp. 217, 218, (W.D. N.Y., 1954); United States ex. rei. GiHett v. Dern, 74 F.2d 485 (D. C. Cir., 1934).
It is my opinion, based on the above authorities, that the Georgia Department of Revenue would not be authorized to permit the National Guard to purchase cigarettes without the payment of the Georgia tobacco tax or to permit the National Guard to make sales of cigarettes or cigars without the payment of the Georgia tobacco tax.
September 4, 1963
OPINION TO THE GAME AND FISH COMMISSION
You request that I give you may official opinion regarding the application of the "open records law" as applied to the Commission's handling of the Fulton Lovell report compiled by the State Law Department.

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The Open Records Law of Georgia, set out in Georgia Laws 1959, page 88, states in part as follows:
"Section 1. All state, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by 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."
This law is self-explanatory and needs little legal interpretation and and construction. It has always been my view and my policy with respect to matters which the State Law Department is handling for the Governor or any of the departments of the State Government, that the same are clothed with confidential immunity because of an active and existent attorney and client relationship.
It is my further view, and it is the policy of the State Law Department, that when I have concluded a matter for the Governor or the departments of State Government by rendering an official opinion or delivering a report of an investigation, that the opinion and reports become official State records, subject to the Open Records Law, unless impressed with that immunity set out in the Open Records Law itself, prohibiting inspection by the general public.
I know of no State statute which grants privilege or immunity from inspection by the general public to any report of an investigation made by the State Law Department for the Game and Fish Commission.
September 5, 1963
SALES TAX
This is in response to your letter in which you raised the following queRtions:
"1. Is a sale of personal property by the Sheriff under foreclosure or other execution subject to sales tax?
"2. If such a sale is subject to tax, is the Sheriff the seller and is it his duty to collect and remit the tax?
"3. Can it be said that the duty is not on the Sheriff but instead on the plaintiff in execution who receives the proceeds to remit the tax?
"4. If such a sale issubject, is the purchaser to be required to pay three per cent in addition to the amount of his bid at the sale, or is the tax to be computed within the amount uf the successful bid?
"5. Is it incumbent on the Sheriff to obtain from the Department of Revenue a sales tax account number?"

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Prior to the adoption of the 1960 amendment (Georgia Laws 1960, pp. 153, 154), the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360) imposed a tax upon the privilege of engaging in the business of selling tangible personal property at retail. The seller, contrary to the popular notion, rather than the purchaser, was the taxpayer, although the Act required the seller to pass the tax on to the purchaser. In other words, the legal incidence was on the seller while the economic incidence was on the purchaser. Oxford v. J. D. Jewel, Inc., 215 Ga. 616 (1960). Furthermore, the tax was only applicable to sales made by a person engaged in the business of selling tangible personal property at retail.
Now, as a result of the 1960 amendment, the tax applies to all retail sales of tangible personal property regardless of whether the seller is engaged in the business of making such sales or not. Hopkins v. West Publishing Co., 106 Ga. App. 596 (1962). Under the Act, a retail sale means "a sale to a consumer or to any person for any purpose other than for resale. . . ." Georgia Code Ann. 92-3403aC (1). Thus, the purchaser of tangible personal property at an execution sale for any purpose other than resale would, in my opinion, be liable for the tax.
At an execution sale, however, the Sheriff is not the seller in the strict sense; he merely acts as agent for the defendant in fi. fa., who is the real seller. Harber & Bro. v. Nash, 126 Ga. 777 (1906); Dozier v. McWhorter, 113 Ga. 584 (1901) ; Ellis v. Smith, 10 Ga. 253 (1851). Based on this, it might appear that the Sheriff is under no duty to collect, account for and pay over to the Revenue Commissioner the tax due on such transactions. Such a view would not, however, take into consideration Georgia Code Ann. 92-3438a, which confers upon the Commissioner power to make reasonable rules and regulations for the enforcement of the Act. Because of the almost impossible administrative burden that would be involved in compelling defendants in fi. fa. to collect, account for and remit the tax, it is my opinion that the State Revenue Commissioner could, if he should so desire, under this authority, require Sheriffs to register and collect the tax. In other words, the matter seems to address itself to the Commissioner's administrative discretion.
With regard to the question whether or not a successful bid involves the sales tax, assuming the tax to be applicable, I am of the opinion that it does not. The tax would be additional, for it would be measured by the successful bid, the selling price of the property in such cases.
September 5, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you request an official opinion concerning the manner and time during which the Revenue

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Department may issue certificates of title for older model motor vehicles.
The Georgia Certificate of Title Law was amended in 1963 to strike provisions of that Act which provided that any person should have the right to apply for a title on any model vehicle at any time after the passage of the Act, Georgia Laws 1963, page 32. The Certificate of Title Act continues to require that "by January 1, 1969, all model vehicles shall have a certificate of title." The question, as I understand it, is to properly construe the legislative intent surrounding the deletion in 6 of the Act concerning application for title at anytime. A legislative body should always be presumed to mean something by the passage of an act. Central of Georgia Ry. Co. v. State, 104 Ga. 831, 839 (1898). As a general rule, the omission of words implies an int<::nded change in the meaning of a statute.
The history of the Certificate of Title Act clearly shows that the General Assembly in passing the original Act intended that all vehicles should be titled immediately. Subsequently, General Assemblies have met and amended the Title Act to provide, in effect, a step-by-step titling of vehicles with the ultimate goal being the complete titling of all vehicles by January 1, 1969.
Georgia Code Ann. 102-102 (9) provides:
"In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. . . ."
Applying these accepted rules of statutory construction, it is clear that all vehicles in this State shall have certificates of title by January 1, 1969, and it is the duty of the Revenue Commissioner to proceed in an orderly fashion for the accomplishment of this goal.
I think it may be reasonably concluded that the purpose of the amendment pertaining to the deletion in 6 of the Act, concerning titling vehicles at any time, was to remove the discretion from the automobile owner and place it in the State Revenue Commissioner in order that the Commissioner might title vehicles in a more orderly manner. The requirement that all vehicles be entitled by January, 1969, means simply on or before January 1, 1969, or not later than January 1, 1969. Dukes v. Gore & Co., 11 Ga. App. 743 (1912).
It is, therefore, my opinion that the Department of Revenue may accept applications for the titling of older model vehicles at any time and may elect to title vehicles as security interests are created with respect thereto.
September 6, 1963
OPINION TO THE PURCHASING DEPARTMENT
This is in reply to your letter in which you request my opinion as to whether or not the State of Georgia may legally do business with

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the Union Timber Corporation since a member of the State Forestry Commission is the principal stockholder of said corporation.
Georgia Code Ann. 43-204, states:
"Chairman; per diem and mileage of members; meetings.The Commission shall elect a chairman annually. The members of the Commission, including the chairman, shall receive such per diem subsistence allowances for each day of actual attendance of meetings by the Commission and mileage to and from the place of meeting and their respective home by the nearest practical route as may be authorized by the Commission. The per diem and mileage allowances received shall not exceed those authorized by law for other State commissions and/or boards. Such per diem and travel expense shall be paid from funds of the Commission. The Commission shall meet at such times at the State Capitol, or at other points, as it may determine, and it shall convene in all sessions upon call by the chairman or by a majority of the members of the Commission."
Georgia Laws 1959, pp. 34, 35, 2, states as follows:
"Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
In 43-204, I direct your attention to the provision which states that the members of the Forestry Commission receive per diem in addition to mileage to and from place of meeting. You will also note that in 2 of the 1959 "Honesty Act" the law prohibits the State of Georgia from doing business with any corporation when "a member of any board, bureau or commission of the State of Georgia "and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, . . . " is interested in the pecuniary profits of such corporation.
In view of the above, the State of Georgia could not legally make purchases from the Union Timber Corporation since the principal stockholder receives per diem as a member of the State Foresty Commission.

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September 9, 1963
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
I am pleased to answer your letter wherein you request an opinion on several questions with which you are confronted. The first two questions you ask me are as follows :
What wording is necessary for a juvenile court to transfer legal custody of a child to a county department of family and children services? Should the word "remand" be interpreted as transferring "legal custody?"
It is my understanding that these questions concern the wording of orders from certain juvenile courts transferring children to the care of county departments of family and children services. Some of the courts have been writing orders stating that a child is "remanded" to the department. This was interpreted by the Social Security Administration and the Veterans Administration as not indicating that the department has legal custody, therefore, benefits available for children in care have not been obtainable for your department in such instances.
I call. your attention to 11 of the Children and Youth Act (Georgia Laws 1963, pp. 81, 102), which authorizes the Division for Children and Youth to establish and maintain various programs and services, including services to the courts. Section 11 (c) (1) states that the Division may:
"Accept for case work services and care all children and youth whose legal custody is vested in the division by the court;
"
Section 3, subsection (1) of the Children and Youth Act, at page 85, defines legal custody as follows:
"'Legal custody' shall mean a legal status created by court order embodying the following rights and responsibilities: the right to have the physical possession of the child or youth; the right and the duty to protect, train and discipline him; the responsibility to provide him with food, clothing, shelter, education and ordinary medical care; and the right to determine where and with whom he shall live; provided, that these rights and responsibilities shall be exercised subject to the powers, rights, duties and responsibilities of the guardian of the person of the child or youth, and subject to any residual parental rights and responsibilities."
I am unable to find any Georgia cases or statutes dealing with a legal interpretation of the word "remand" as raised by your request. I feel, however, that the following foreign decisions are applicable to this situation.
In a New York case, People, ex. rei. Bernoff v. Jackson, 56 N.Y.S. 2d 675, 678 (1945), the court held that the word "remand" in a

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court order in a habeas corpus proceeding remanding relator to respondent's custody may mean to recommit or "send back" under the same process under which the relator is held or under different warrants whether it be means of final processes.
In an Idaho case, State v. Slater, 72 Idaho 383, 241 P. 2d 1189, 1190 (1952), the court stated that to remand cause is to send it back to the court from which it came.
Then, in still another case, State ex. rei. Norfleet v. Swafford, 184 Tenn. 340, 198 S.W. 2d 1007, 1009 (1947), the court held under a statute providing that if juvenile court finds a delinquent child to be incorrigible, etc., the infant may be remanded to the proper court of the county, remand meaning to remit or send back a cause to the court from which it was removed, appealed or transferred into another court in order that some further action may be taken upon it in the original form.
Webster's New International Dictionary, Second Edition, page 2106, defines "remand:"
1. To recomit; to send back; specifically to recommit (a prisoner) temporarily.
2. To commit or consign; to remit.
3. To command or summon, to return; to recall.
4. To demand the return of, to countermand.
Under the various interpretations and definitions cited the word "remand" in my opinion is not adequate in a legal sense to establish legal custody in a court order. The word "remand" can only mean that the child is returned or "sent back" to your department without the order of court having any bearing or relation as to legal custody. It is my further opinion that the order should specifically state that the department is vested with "custody care and control of the child until further order of the proper court."
It is clear from the language contained in the Children and Youth Act (Georgia Laws 1963, p. 81), that if a county department of family and children services is to accept responsibility for the full-time care, guidance and control of a child it must have "legal custody."
The next question you pose is whether advisory board members appointed by juvenile court judges have the right to visit approved boarding homes which the Department of Family and Children Services uses for the care of children referred to them by the court.
In connection with this second point you state in your letter that the department is perfectly willing to receive visitors from the advisory board at its offices and discuss with them its foster home program. It is also willing to arrange an occasional visit to one of these homes so that the board might be reassured these children are receiving good care. It is most reluctant, however, to reveal the names and locations of all of its boarding homes to the Juvenile Court Advisory Board so that it might visit at its own discretion. This

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would place the boarding parents under unjustifiable scrutiny and subject to unscheduled visits at any time. Good boarding homes are difficult to find and difficult to retain. Often the boarding rate paid these persons is not enough to cover the expenses incurred in providing such care for children. If they must also feel that they are subject to surveillance of this sort, then another discouraging factor has been added.
This question relates to 24-2434 of the Georgia Code Annotated, which provides:
"The judge of each juvenile court may appoint a board who shall serve without compensation of salary of any kind whatsoever, to be called the advisory board of the juvenile court. The members of this board shall hold office during the pleasure of the court. The duties of said board shall be as follows:
(1) To visit as often as possible all institutions, societies or associations receiving children under this Chapter. Such visits shall be made by not less than two members of said board, who shall go together and make a report, and said board shall report to the court from time to time the conditions of children received by or in charge of any persons, institutions, or associations and shall make an annual report to the judge of said court.
(2) To advise and cooperate with the court upon all matters affecting the workings of this Chapter and to recommend to the court any and all needful measures for the purpose of carrying out the provisions of this Chapter."
This statute, 24-2434, supra, has not been the subject of review by any appellate courts since its enactment, and I do not find any changes in the statutory law with reference to procedure for implementation of this law. It appears, therefore, that your question would be a matter of interpretation of the statute using as a yardstick whatever general law may be applicable.
Section 24-2434 states that each judge may appoint an advisory board; it is my feeiing that the word "may" is permissive in nature and not mandatory as if the word "shall" had been used.
Section 24-2434, supra, further provides that among the duties of the Board shall be the duty:
"To visit as often as possible all institutions, societies or associations' receiving children...." [emphasis added]
In view of the provisions of this law, in order to answer your question clearly, I deem it advisable to state the question in another way:
Can a foster home, which is in essence a private home, be regarded as an institution, society or association?
The following are a few applicable definitions of the word "institution:"

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"(1) An institution is an established or organized society or corporation. It may be private in its character, designed for profit to those composing the organization or public or charitable in its purpose. In re. Peabody's Estate, 21 Cal App. 2d 690, 70 P. 2d 249, 250.
"(2) An allegedly insane wife who is removed from a state hospital prior to the expiration of three years and was then confined to her mother's home, was not confined to an "institution" for more than three years. Finklestein v. Finklestein, 88 Cal. App. 2d 4; P. 2d 98, 99."
Other opinions deal with the word "association."
"(1) 'Association' is a word of vague meaning used to indicate a collection of persons who have joined together for a certain object. Van Pelt v. Hilliard, 75 Fla. 792; 78 So. 693, 695. [Emphasis added]
"(2) 'Association' is defined as the act of a number of persons who unit or join together for some special purpose . . . W. R. Roach and Co. v. Harding, 384 Ill. 454; 181 N.E. 331,
33~.
Words and Phrases, Vol. 39, p. 554, has the following applicable language regarding "society:"
"Society and association are convertible terms. New York County Medical Association v. City of New York, 65 N.Y.S. 531."
In my opinion, a foster home is in essence a private home and cannot be regarded as an institution, society or association; therefore, advisory board members appointed by juvenile court judges do not have the right to visit approved boarding homes which the Department of Family and Children Services are using for the care of children referred to them by the court.
September 9, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
In your letter you request the opinion of this office on the following questions dealing with H. B. 225 approved Mar. 11, 1963, entitled "An Act to Regulate the Occupation of Cosmetology:"
1. Does the definition apply to a course of instruction in Cosmetology taught in a tuition-free, technical and vocational school operated as a part of the State's public school system under either the State Board of Education or under a local Board of Education?
2. If the definition (and Act) applies to public school programs, are such "schools" subject to compliance with all provisions of the Act including the payment of fees for registration

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of the "school," for registration of instructors, and for registration of the students?
3. If the definition (and Act) does not apply to public school programs, what specific regulatory functions, if any does the State Board of Cosmetology have with respect to these programs such as "to set a course of study," "prescribing the sanitary requirements of beauty shops ...,"etc.?
4. Does a course of instruction in Cosmetology taught in a tuition-free technical and vocational school operated as a part of the State's public school system under either the State Board of Education or under a local board of education constitute for this purpose "an accredited school?"
Answering your questions in the order submitted, you are advised:
1. Section 1 of the Cosmetology Act of 1963 defines a "cosmetologist" as "any person who cuts or dresses the hair, gives facial or scalp messages, facial or scalp treatments with oils or creams, and other preparations made for this purpose either by hand or mechanical appliance, who singes and shampoos the hair, or who dyes the hair of any living person and who does permanent waving of the human hair for compensation. . . ."
Section 2 of the Act defines a "beauty shop or "beauty Salon" as "any premises where one or more person engages in the occupation of Cosmetology." This section defines a "beauty school" or "beauty college" or "school of cosmetology" as "any business entity that trains more than one person for compensation in the occupation of Cosmetology."
The term "business entity" is not defined in the Act. Words and Phrases defines the term "entity" as a legal being. The same work defines the word "business" in various and sundry ways. In the most common usage the word "business" denotes the occupation which one pursues for a livelihood.
Construing the language of 1 and 2 of the Act, it is my opinion that the definition of a "beauty school," a "beauty college" or a "school of cosmetology" does not include a "technical and vocational school operated as a part of the State's public school system under either the State Board of Education or under a local board of education."
2. Permit me to point out what appear to be the fundamental questions at issue, which are (1) who is charged with the duty and responsibility of administering the public education program of the State-the Department of Education or a Board charged with the responsibility of regulating a particular occupation?; and, (2) Can a regulatory Act impose charges and fees on the public school system?
Ga. Const. Art. 8, 1, para. 1 (Georgia Code Ann. 2-6401) provides:

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"System of Common Schools; Free Tuition; Separation of Races: - The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races." Section 32-937, provides:
"Admissions to all common schools shall be gratuitous to all children between the ages of six and nineteen years residing in the districts in which the schools are located."
Section 32-403, provides:
"Rules and regulations for supervision of schools; courses of study; curriculum revision; administration of school funds.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."
To permit a regulatory board, such as that created by the Cosmetology Act, to administer a course of study in the public school system to impose a registration fee upon a public school and a license fee upon teachers therein and to require a registration fee from students taking a course of study in the public schools, would be in violation of the Constitutional and statutory provisions quoted above. It is therefore my opinion that public schools offering courses in Cosmetology are not required to pay the school registration fee; that the teachers in such schools teaching Cosmetology courses are not required to pay the teachers license fee, and students in such schools taking Cosmetology courses are not required to pay the students registration fee required by the Cosmetology Act of 1963.
3. While in my opinion Cosmetology courses taught in the public school program do not come under the direct supervision of the Cosmetology Board, in view of the provisions of 10 of the Act that an applicant for certificate of registration shall satisfy the Board that: 1. "He or she is free from contagious diseases:" 2. "Shall pay to said (Joint) Secretary an examination fee of $30.00 ;" 3. "Shall present himself or herself at the next meeting of said Board held for examination of applicants ;" and must make it appear to the Board that applicant is: (a) above 18 years of age; (b) of good moral character; (c) free from contagious disease; (d) has completed 1,500 hours study course at an accredited school; or (e) has served as an apprentice for a period of at least 3,000 hours and has practiced the occupation of a cosmetologist and is possessed of the requisite skill in said occupation to perform the duties and services incident thereto; it would appear highly desirous for the Education Department to cooperate with the Cosmetology Board in providing

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teachers qualified by training and experience and in offering required courses and meeting the sanitation and other standards required of beauty schools and colleges under the supervision of the Cosmetology Board.
4. A course of instruction in Cosmetology taught in a tuitionfree technical and vocational school as a part of the State's public school system under either the State Board of Education or under a local board of education is not necessarily "an accredited school" within the meaning of the Cosmetology Act of 1963.
However I am of the opinion that, if the Cosmetology courses offered in the public school systems should be taught by qualified teachers, should cover the courses of instruction and the number of hours required by the State Board of Cosmetology and the Cosmetology Act of 1963, and should meet the sanitary and other standards required of private schools or colleges, the graduates of such courses in the public school system would be qualified to take the examination. for a certificate of registration upon payment of the required fee and meeting the other qualifications.
September 12, 1963
OPINION TO THE GOVERNOR
Thank you for your recent letter, stating that a vacancy has occurred in the office of the State Senator representing the 54th Senatorial District composed of Catoosa, Murray and Whitfield Counties. You inquire as to the proper official or officials to whom your writ of election should be issued, and as to whether the governing authority of each County is authorized to fix qualification fees for candidates seeking such State office.
Your writ of election should be issued to the Ordinary of each County composing the 54th Senatorial District_! In the interest of uniformity, it would be advisable for you to arrange with the Ordinaries the day on which the election will be held and also the last day on which candidates seeking such office may qualify.
Each candidate seeking the office should qualify with the Ordinary of each County.2 Out of an abundance of precaution, I suggest that such candidates also qualify with the Secretary of State,3 who should certify the qualifications to the Ordinaries.4
1. State Const., Art. V., Sec. I, Par. XII (Georgia Code Ann. 23012) ; Ga. Code Ann. 34-1701.
2. Georgia Laws 1962, p. 504 (Georgia Code Ann. 34-2608), as amended by Georgia Laws 1963, p. 172.
3. Georgia Laws 1962 Extra. Sess., Sept. - Oct., pp. 7, 10 (Georgia. Code Ann. 34-1904 (b) ).
4. Georgia Code Ann. 40-601 (7).

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As to your second inquiry, a recent law 5 authorizes the governing authority of each County to prescribe a reasonable qualification fee for each candidate in a special election for the filling of a vacancy in the membership of the General Assembly. Such fee must be fixed and posted at least ten days prior to the election. A candidate nominated in a primary is exempted from paying such fee.
September 12, 1963
OPINION TO THE GOVERNOR
I have your letter enclosing copy of a letter from Mr. J. S. Darnell, Commissioner of Roads and Revenues of Pickens County, in which you request my advice as to whether Mr. Darnell is required to continue to discharge the duties of his office until his successor has qualified by taking the oath of office and by posting a bond in an amount approved by the Ordinary.
It appears from Mr. Darnell's letter to you dated September 10, 1963, that Mr. Darnell tendered his resignation as Commissioner of Roads and Revenues of Pickens County on August 22, 1963, and that on August 23, 1963, you accepted said resignation effective August 31, 1963. It further appears that on the same day you appointed the Honorable Will Hayes Pickett to succeed Mr. Darnell, effective September 1, 1963.
I am advised that the Ordinary of Pickens County has refused to administer the oath of office to Mr. Pickett, prohibiting Mr. Pickett from qualifying, and that Mr. Pickett has filed an application for a writ of mandamus against the Ordinary of Pickens County and that said litigation is pending.
Section 89-105 of the Georgia Code Annotated provides as follows:
"Officers of this State to reside therein, hold until successor is qualified, and keep seal. - All officers of this State shall reside therein, at such places as are designated by law, and discharge the duties of their offices until their successors are commissioned and qualified; and all officers whose certificates to records or other papers are admissible in evidence in any court in this State must have and keep an official seal."
To insure that the office of Commissioner of Roads and Revenues of Pickens County is not vacant, and that the affairs of the county may be legally and effectively attended to, I would suggest that you modify your acceptance of Mr. Darnell's resignation so that it shall not take effect until Mr. Darnell's successor is commissioned and qualified, with instructions to Mr. Darnell as Commissioner of Roads and Revenues of Pickens County that he take the necessary steps to insure that his position as Commissioner is covered by his surety bond without any break in coverage up until the time his successor is commissioned and qualified.
5. Georgia Laws 1962, p. 504 (Georgia Code Ann. 34-2608), as amended by Georgia Laws 1963, p. 172.

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September 13, 1963
GEORGIA INDUSTRIAL LOAN ACT
You request guidance concerning the determination of loan limitations imposed by Paragraph B of 15 of the Georgia Industrial Loan Act. As you succinctly stated, the restricted periods on renewals are two months on loans of $100 or less than six months on loans over $100.
Paragraph 8 of Georgia Code Ann. 102-102, states:
"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 through the following Monday to exercise such privilege or to discharge such duty." Georgia Laws 1958, pages 388, 389.
This Code section would substantiate and authorize the instructions which are presently being given the Georgia Loan Examiners. A loan made January 15, 1963, can be renewed after July 15, 1963, because the first day is excluded and the six months restricted period actually begins January 16 and expires July 15. It is clear that the language of this Code section dealing with Saturdays and Sundays has no application when statutory restrictions are couched in terms of months or years such as found in Paragraph B of 15. There is some doubt in my mind that this section dealing with statutory interpretation is applicable at all in view of the language contained in Thomas v. Couch, 171 Ga. 602, 607 (1930), to the effect that:
"The rule as laid down in our Civil Code with reference to the first and last day, does not apply where the bar is in terms of years or months rather than in days."
Headnote 2 of the Case of Chevrolet Parts Division, General Motors Corp. v. Harrell, 100 Ga. App. 280 (1959), states:
"The provisions of Code 102-102 (8) as amended by the Act approved March 25, 1958 (Ga. L. 1958, pp. 388, 389) to the effect that when a number of days is prescribed for the exercise of any privilege and the last day shall fall on a Saturday or Sunday, the party having such privilege shall have through the following Monday to exercise such privilege, do not apply to limitations expressed in months or years and to the limitation fixed by Code 114-305 so as to extend the time for filing a claim under the Workmen's Compensation Act. Brown v. Emerson Brick Co., 15 Ga. App. 332, 333 (3) (83 S.E. 160) ."
This headnote further clouds the issue. However, for the purposes stated in your letter it is my opinion that the statute should be interpreted so that the prohibitive period, either two months or six months, begins running the day following the date contained in the loan and expires midnight six months later on the same numerical calendar date, and further that the Saturday or Sunday carry-over period would not apply and could be counted toward the fulfillment of the restricted period.

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September 13, 1963
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
I am pleased to answer your letter wherein you request an official opinion regarding the following questions:
"1. Was it the intent of the legislature in stating that the Director of the State Department of Family and Children Services shall select for each position on a County Board of Family and Children Services one of the three names submitted by the County commissioners, that he be given a choice? In other words, when only one, two or three of the names submitted out of a total of fifteen are qualified, this gives the Director no choice if he is required to select one of these names.
"2. In the event that it is the legislative intent of this Act to provide the Director a choice, does he then have the right to reject the names of the few qualified who are submitted and, of his own motion, make appointments to fill the vacancies existing on the County Board of Family and Children Services ?"
The answer to these questions turns upon the construction of a provision of 10 of Georgia Laws 1963, pp. 222, 223, and upon the application of this Act to the factual situation as outlined in your letter. The provision of the Act in question reads:
"The county board of family and children services shall consist of five (5) members who shall be appointed by the Director of the State Department of Family and Children Services on the recommendation and nomination of the county commissioner or board of commissioners, or other constituted fiscal or financial agent of the county. Such commissioner or commissioners, or fiscal or financial agent, shall recommend and nominate to the Director of the State Department of Family and Children Services three (3) influential and respected citizens, recognized for their demonstrated interest in family and children services provided by the county department, for each position on the county board to be filled by the Director: Provided, however, that no elected officer of the State or any subdivision thereof shall be eligible for appointment to the board. The term of office of members of the county board shall be for five (5) years, except that upon the expiration of the terms of the present members of said board one (1) member shall be appointed for a one (1) year term; one (1) member for a two (2) year term; one (1) member for a three (3) year term; one (1) member for a four (4) year term, and one (1) member for a five (5) year term. The Director of the State Department may provide rules and regulations governing selection of persons to serve as chairman and vice-chairman of said boards. Appointments to fill vacancies caused by death, resignation or removal before the expiration of a term shall be made for the

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remainder of such term in the same manner as herein provided for original appointments. Members of the county board shall serve without compensation, except that they shall be reimbursed for traveling and other expenses actually incurred in the performance of their official duties. In the event that the county commissioner or commissioners, or county fiscal or financial agent, :;;hall fail to recommend and nominate persons to fill vacancies on the county board as required by this Act, then the Director may appoint members to the county board to fill such vacancies absent such recommendation and nomination; ..." (Emphasis added)
You state in your letter that:
"Pursuant to this Act, we have requested and have received from most of the county departments recommendations to the County Boards of Family and Children Services and have made appointments in accordance therewith. However, one particular county has submitted names pursuant to this Act on four different occasions. The names submitted by the County Commissioners were, in the majority, disqualified in that they had relatives within the degree of consanquinity and affinity who were receiving assistance which prohibited their serving under a long established policy of this department. Other names submitted by the commissioners were disqualified in that they held another elective office in the county and were thus prohibited by law from serving. Still others were disqualified due to the fact that they were employed by another branch of the Government, either Federal, State or local, which is also contrary to the policies of the department." In view of these facts, you then ask me the above stated questions.
A well recognized rule of statutory construction is: "A statute must be construed with reference to the whole system of which it forms a part." McDougold v. Dougherty, 14 Ga. 674 (5) (1852) ; Cork v. Wier, 185 Ga. 418, 421 (1938); Lucas v. Smith, 201 Ga. 834, 837 (1947); Sale v. Leachman, 218 Ga. 834, 835 (1963). The Act of 1963, supra, forms a part of the system of laws relative to the application of a social welfare program for our citizenry. (Title 99, Georgia Code Ann.)
All statutes should be given logical meaning and effect, unless a contrary legislative intent plainly and unequivocally appears from the statute or facts connected with its enactment. Lombard v. Trustees, 73 Ga. 322, 323 (a) (1885); Odum & Cochran v. Macon & B. Ry., 118 Ga. 792, 794 (1903); Georgia R. R. & Banking Co. v. Wright, 124 Ga. 596, 626 (1906); Sale v. Leachman, 218 Ga. 834, 836 (1936). Here, there is nothing compelling a more definite interpretation of the Act of 1963 than that which will be reasonable and in keeping with the established principles relative to the construction of statutes.
The Supreme Court of Georgia held in Blalock v. State, 166 Ga. 465, 470 (1928) :
"In the interpretation of a statute the courts must look diligently for the intention of the General Assembly ... This is

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the cardinal rule in the construction of statutes, and the intention when accertained must be carried into effect ... The construction must square with common sense and sound reasoning."
Your attention is called to the provisions of Georgia Code Ann. 102-102, Construction of Statutes, (9), which includes the following provisions:
"In all interpretations the courts shall look diligently for the intention of the General Assembly, keeping in view at all times, the old Law, the evil and the remedy. . . ."
The notes to this code section include many references to cases which hold generally that whenever the statute is clear and unambiguous it will be held to mean what has been clearly expressed.
I should also like to call your attention to the case of Southern Security Co. v. American Discount Co., 55 Ga. App. 736, 740 (1937), wherein the court held:
"When the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory."
The 1963 Act here construed does not declare what result shall follow non-compliance therewith, nor contain negative words importing a prohibition of any mode of proceeding other than that mentioned.
My view is that the language contained in this Act is directory and not mandatory and, therefore, you may as Director of the State Department of Family and Children Services name members of a county board in the event that any county board is not named within a reasonable time as provided in this section. (Section 10, Georgia Laws 1963, pp. 222, 223).
I therefore conclude that on the basis of the above authorities and the clear and unambiguous language contained in the Act under consideration, that both of the questions you posed must be answered in the affirmative.
September 13, 1963
OPINION TO THE DEPARTMENT OF BANKING
You requested that I render an official opinion as to whether bonds issued by the Mitchell County Development Authority are general and direct obligations of Mitchell County, subject to the 25% limitation imposed under Paragraph (b) of Code 13-2023.
The section to which you make reference in part reads:
"The purchase and ownership of all authorized investment

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securities shall be subject to the following limitations and provisions:
"(b) As to general and direct obligations of the various political subdivisions of the State of Georgia, no more than 25 percent. of the capital and unimpaired surplus of a bank shall be invested in the said general and direct obligations of any one such obligor; ... "
I have secured a copy of the validation proceedings for these bonds and believe them to be in order. Of course, the time within which to file an appeal has not yet expired (September 20) so the proceedings are not yet final, but for all practical purposes may be considered as such. This opinion is predicated on the absence of an appeal and the resulting finality of the validation proceedings.
These bonds are proposed under the authority of a constitutional amendment ratified November 6, 1962 (Georgia Laws 1962, p. 761). That resolution created a corporation known as the Mitchell County Development Authority, an instrumentality of Mitchell County. Though by Paragraph E the Authority is not authorized to create any liability against Mitchell County, later paragraphs make provision for Mitchell County to assume such obligations. Paragraph H authorizes revenue bonds in accordance with the Revenue Bond Law (Georgia Laws 1937, p. 761), and execution of a trust agreement or indenture to provide security for these bonds.
A portion of Paragraph H reads :
"Bonds, thus issued, shall be paid first from the income of the Authority. In the event such income is not sufficient to pay the principal and interest of such Revenue Bonds, as they mature, then the Commissioners of Roads and Revenues are authorized and required to provide the additional funds necessary to make such payment, and for this purpose the said Commissioners are authorized to levy an annual tax on all taxable property within the county provided such tax shall not exceed five mills;"
Then, the following Paragraph, I, authorizes the Commissioners of Roads and Revenues to appropriate to the authority such funds each year as they shall see fit.
As part of the validation there is included a contract between the Authority and Mitchell County which adopts as a matter of contractual obligation the basic provisions of Paragraph H. By the terms of this agreement, Mitchell County obligates itself to the Authority to furnish the sums required for bond reduction on specified dates, and to levy taxes as provided by the constitutional amendment if necessary in order to obtain the funds. The county is absolved from making payments so long as sufficient money is in the Sinking Fund to make required payments, and the Authority is to apply all sums received from the securities to this Sinking Fund.
In my opinion, construction of the constitutional amendment and the contract is such that upon finality of the validation proceedings,

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these bonds will for all practical purposes occupy the same status and classification as a bond issued directly by the county. Thus they would be includable within the term "general obligations of the various political subdivisions of the State of Georgia" as used in Georgia Code Ann. 13-2023 (b) .
September 17, 1963
COMMISSIONER OF AGRICULTURE
This will acknowledge your recent letter, in which you asked a question concerning the abatement of a nuisance created by the operation of a chicken house located upon land zoned for agricultural use, and the powers of the Commissioner of Agriculture, if any, to abate such a nuisance.
The powers and duties of the Commissioner of Agriculture and his Department, are enumerated by Georgia law (Georgia Code Ann. Title 5). There is no provision which would enable the Commissioner of Agriculture to take action under such circumstances.
Georgia Code Ann. 72-102, provides:
"A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals."
The abatement of nuisance is provided for in Georgia Code Ann. 72-202:
"Private citizens may not generally interfere to have a public nuisance enjoined, but the petition must proceed for the public on information filed by the solicitor general of the circuit. A public nuisance may be abated on the application of any citizen specially injured."
And Georgia Code Ann. 72-203 provides :
" A private nuisance may be abated on the application of the person injured."
It is clear that the Commissioner of Agriculture does not have any authority in the above stated matter.
It also appears that the question of determining whether or not the facts enumerated by you are a public or private nuisance is a matter that directs itself to local officials. In the event it is determined that a public nuisance exists, then you should consult with the Solicitor General. In the event it is determined that the matter is a private nuisance, it would be incumbent upon you or the persons directly affected to take the necessary action to abate the same.

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September 17, 1963
OPINION TO THE DEPARTMENT OF BANKING
You asked for an opinion as to whether certain transactions (whereby a bank purchases Federal Reserve Funds from another bank, with delivery being simple transfer of credit from the selling bank's reserve account to the purchasing bank's account, the payment to include a specified fee) would constitute loans subject to the limitations imposed under the banking laws (Georgia Code Ann. 13-2013 and 13-2025) as they relate to any one person, firm or corporation.
The first section to which you refer reads, in part:
"13-2013. - - No bank shall be allowed to lend to any one person, firm, or corporation more than 20 per cent. of its capital and unimpaired surplus; and in the event that a loan, or loans, to any one person, firm or corporation, aggregate an amount in excess of 10 per cent. of the capital and surplus, the entire amount of such loan or loans shall be secured by good collateral or other ample security, and made with the approval of a majority of the directors, or of a committee of the board of directors authorized to act, which approval shall be evidenced by the written signature of said directors or the members of said committee. In estimating loans to any person, all amounts loaned to firms and partnerships of which he is a member shall be included: Provided, however, that a bank may buy from or discount for any person, firm, or corporation, bills of exchange drawn in good faith against actually existing values, or commercial or business paper actually owned by the person negotiating the same, in addition to loans directly made to the person firm or corporation selling the same, such purchase or discount not to exceed 20 per cent. of the capital and surplus, and if in excess of 10 per cent. of the capital and surplus, to be approved in writing by a majority of the directors, or by a committee of such board authorized to act; and Provided, that the limit of loans herein fixed shall not apply to bona fide purchases of commercial or business paper without recourse on the holder or payee of such paper: ... "
(The remainder of the section is concerned with certain provisos which I do not feel to be applicable to this situation.)
The other section provides:
"13-2025. - - No bank shall at any time be indebted to an amount exceeding double the amount of its capital stock actually paid in and remaining undiminished by losses or otherwise, plus the amount of the unimpaired surplus and undivided profits, ... "
The terms "lend," "loan," and "indebtedness" are not defined in the banking law, but the Georgia Court of Appeals has stated the four elements of a "loan" are:

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"a principal sum, a placing of the sum with a safe borrower, an agreement that interest was to be paid, and a recognition by the receiver of the money of his liability for the return of the principal amount with accrued interest." McLendon v. Johnson, 71 Ga. App. 424 (1944).
The term "lend" is defined by Black's Law Dictionary, 4th Ed., as:
"To part with a thing of value to another for a time fixed or indefinite, yet to have some time in ending, to be used or enjoyed by that other, the thing itself or the equivalent of it to be given back at the time fixed, or when lawfully asked for, with or without compensation for the use as may be agreed upon."
In the same volume, a definition of "loan" is given as a "contract whereby one delivers money to another who agrees to return equivalent sum. Easter Oil Corporation v. Strauss, Tex. Civ. App., 52 S.W. 2d 336, 340."
It is my understanding the transactions take essentially the following pattern. A bank which is a member of the Federal Reserve must maintain a certain amount of funds on deposit, the exact amount fluctuating and being not always predictable because of the intricacies of the business and financial world. On occasion, a bank will find it has a large amount of surplus, and conversely, another member bank will find its balance in peril of becoming grossly deficient. Since there is no return upon funds on deposit, it has become a custom for banks with surplus to lend or sell these funds to a bank which is short. The arrangement often takes the form of telegrams with the "buying" bank agreeing to pay with an added surcharge (which incidentally is currently 3 1/2%, or the same as the interest or discount rate) and the "selling" bank wiring the Federal Reserve bank to transfer a certain amount of funds from its account and credit them to that of the "purchasing" bank. It is a temporary arrangement, and the "purchasing" bank will "re-sell" as soon as its normal deposit of funds is again sufficient.
The United States Comptroller of Currency has in the past regarded these transactions as loans, as have all state banking departments, and the Federal Reserve Board. However, I am now informed the Comptroller has issued a new regulation which interprets and classifies these transactions as "sales" of funds. This has served to release National banks from certain federally imposed restrictions on their loans, which is similar to the limitations placed upon Georgia banks by our law, and gives these National banks an advantage as they, in effect, are allowed a greater lending leeway.
I understand the anxiety of our state banks, but cannot agree with the interpretation and ruling of the Comptroller, and feel it to be totally erroneous. I do not feel the label he has chosen to term these transactions is compatible with the Georgia banking laws, and of course is not binding upon the Georgia banking system anyway. It seems patently obvious any arrangement whereby one party agrees to sell another a sum of money, with payment from the other to be

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made later, also in monies, plus a small service charge, is in reality a loan arrangement, no matter by what term it is designated, and would therefore come within the limitations and prohibitions of Georgia Code Ann. 13-2013 and 13-2025.
September 18, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge your recent letter requesting my official opinion as to the status of the Georgia Law requiring Bible reading in the public schools of this State in the light of the recent ruling of the United States Supreme Court.
You inquire in your letter, "Is the provision of Code Section 32705 [Georgia Code Annotated] requiring 'that the Bible, including the Old and new Testaments, shall be read in all the schools receiving State funds ... ' still in effect, .and are the school systems of the State required to comply with the provision of the law?"
It is my opinion that students and teachers may assemble before classroom period, on a voluntary basis, without any direction or supervision of teachers or other school officials for a "freedom of belief period" at which time under arrangements made entirely by students they may engage in a moment of "meditative silence," or recite the Lord's Prayer, or read from the Bible, or recite a prayer of any other faith or belief, or read from the literature of any other faith or belief, during a time the classroom is open for any orderly activities of the students. If the students gather in a classroom before supervised activities begin for the purpose of discussion, inspiration or other orderly purposes, the State would not be formally placing its facilities at the disposal of religious institutions and would not be participating in the fostering of religious education.
The United States Supreme Court in the combined cases of Murray v. Curlett and School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.CT. 1560, 10 L. Ed. 2d. 844, decided June 17, 1963, declared unconstitutional laws of Pennsylvania and Maryland that were indistinguishable from the Georgia law set out in Georgia Code Ann. 32-705. On the basis of the recent Supreme Court ruling in the Murray and Schempp cases, it is my opinion that should the constitutionality of the Georgia statute involved be attacked,' it would be declared void.
On April 25, 1956, in an official opinion to the Governor of the State of Georgia (Ops. Att'y Gen. 209 (1954-56), on the subject of teaching of the Bible in the public schools of Georgia, I stated that based upon the decisions of the United States Supreme Court in the cases of Illinois ex rei McCollum v. Board of Education, 333 U.S. 203, 68 S.CT. 461, 92 L. Ed. 649 (1948) and Zorach v. Clauson, 343 U.S. 306, 72 S.CT. 679, 96 L. Ed. 954 (1952), that "sectarian religious instruction, done in the public schools and with particular administrative

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cooperation, amounts to an unconstitutional establishment of religion under the United States Constitution."
Let me emphatically state at this point that I disagreed with the decisions of the Supreme Court at the time I wrote the 1956 opinion and I disagree even more so today with the broad extension by the Supreme Court, in the Murray and Schempp cases, of the construction of the principles of separation of church and state and establishment of religion, both upon technical legal grounds and upon historical concepts of the foundation and structure of our system of government. I would be personally disloyal to the Creator recognized in the Declaration of Independence and acknowledged throughout the entire fabric of American government, society and life; and I would be a legalistic hypocrite if I were to accept and concur in a view that tended to disacknowledge God in all state, governmental and public affairs.
I disagree, on legal grounds, with the recent decisions of the Supreme Court in the school prayer cases in bringing the substantive guaranties of the First Amendment to the Constitution, applicable only to Acts of the Congress, within the embrace and extension of the "Due Process of Law" provisions of the Fourteenth Amendment of the Constitution, applicable to states. I disagree with the decisions in their construction of the constitutional principles of separation of church and state and freedom of exercise of religion. Separation of church and state has historically forbidden the incursion of organized religion - the Church - into the governmental area. Freedom of exercise of religion exists to protect our God-given rights. Religion in its deepest and most universal aspects has always been part of our governmental tradition. Justice Clark, who delivered the opinion of the Court in the Murry and Schempp cases stated:
"It is true that religion has been closely identified with our history and government. 'The history of man is inseparable from the history of religion. And - - since the beginning of that history many people have devoutly believed that 'More things are wrought by prayer than this world dreams of." In Zorach v. Clauson, 96 L. Ed. 954, we gave specific recognition to the proposition that 'we are a religious people whose institutions presuppose a Supreme Being.' The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, 'So help me God.' Likewise each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship. Indeed, only last year an official survey of the country indicated that 64% of our people have church membership, Bureau of Census, U.S. Department of Commerce, statistical Abstract of the United States,

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48 (83d Ed. 1962), while less than 3% profess no religion whatever. Id., at p. 46. It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are 'earnestly praying, as ... in duty bound, that the Supreme Lawgiver of the Universe ... guide them into every measure which may be worthly of his ... blessing .. .' Memorial and Remonstrance Against Religious Assessments, quoted in Everson v Board of Education, 333 US 1, 71, 72, 91 L ed 711, 752, 67 S Ct 504, 168 ALR 1392 (1947) (Appendix to dissenting opinion of Rutledge, J.).
"This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life. Nothing but the most telling of personal experiences in religious persecution suffered by our forebears, see Everson v. Board of Education, supra (300 US at 8-11), could have planted our belief in liberty of religious opinion any more deeply in our heritage."
The Court then cited prior Supreme Court decisions which held that neither a state nor the Congress can set up a church, or pass laws which aid one religion, aid all religions, or prefer one religion over another, and that the purpose of the First Amendment providing that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," was "to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.''
The Court states in the Murray and Schempp cases at p. 855:
"The interrelationship of the Establishment and the Free Exercise Clauses was first touched upon by Mr. Justice Roberts for the Court in Cantwell v Connecticut, supra (310 US at 303), where it was said that their 'inhibition of legislation' had 'a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts - - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.'
"A half dozen years later in Everson v Board of Education, supra (330 US at 14, 15), this Court, through Mr. Justice Black stated the 'scope of the First Amendment ... was designed forever to suppress' the establishment of religion or the prohibition of the free exercise thereof. In short, the Court held that the Amendment 'requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.' "

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Beginning on p. 857 of the Murray and Schempp case the Court states:
"And then in 1961 in McGowan v. Maryland and in Torcaso v. Watkins each of these cases was discussed and approved. Chief Justice Warren in McGowan, for a unanimous Court on this point, said:
'But, the First Amendment, in its final form, did not simply. bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus this Court has given the Amendment a 'broad interpretation ... in the light of its history and the evils it was designed forever to suppress ... " 366 US, at 441, 442.
"And Mr. Justice Black for the Court in Torcaso, without dissent but with Justices Frankfurter and Harlan concurring in the result, used this language:
'We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.' 367 US, at 495.
"Finally, in Engel v. Vitale, only last year, these principles were so universally recognized that the Court without the citation of a single case and over the sole dissent of Mr. Justice Stewart reaffirmed them. The Court found the 22-word prayer used in 'New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer ... [to be] a religious activity.' 370 US, at 424. It held that 'it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.' Id. 370 US at 425. In discussing the reach of the Establishment and Free Exercise Clauses of the First Amendment the Court said:
'Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.' Id 370 US at 430, 431.

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"And in further elaboration the Court found that the 'first and most immediate purpose [of the Establishment Clause] rested on a belief that a union of government and religion tends to destroy government and to degrade religion/ Id. 370 US at 431. When government, the Court said, allies itself with one particular form of religion, the inevitable result is that it incurs 'the hatred, disrespect and even contempt of those who hold contrary beliefs.' Ibid.
v.
"The wholesome 'neutrality' of which this Court's cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particular. ly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows; what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."
The Court applied that test to the facts in the Murray and Schempp cases and found that Bible reading and the recitation of the Lord's Prayer conducted as part of a daily program of opening exercises in public schools under the supervision and with the participation of teachers constituted a religious ceremony and was in violation of the First Amendment.
Although the Murray and Schempp decisions are binding only upon the parties to those cases and are not technically the 'law of the land," I would be derelict in my official duty were I to advise you and other public officials of this State to do other than to abide by the rulings of the Supreme Court as long as they are in force and effect.
I am sure that many citizens of this State are seeking guidance as to how students may exercise their freedom of conscience and religion and stay within strictures laid down by the Supreme Court

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upon legislative and school board action prohibiting governmental encroachment in the area of religion. The Court has said, and I repeat - "... there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The Court knocked down the contention that this ruling could establish a "religion of secularism" in our schools; however, in the words of one of our nation's outstanding clergymen, Bishop Stephen F. Bayne, Jr.,"There is nothing which can possibly prevent the American state from deifying itself, making a god out of itself, except the vitality, the watchfulness, the dutiful concern and care of its responsible citizens, and the vigor and courage of its religious institutions."
In seeking guidance as to a course of action to pursue with our students and teachers so as not to offend the Establishment of Religion Clause and at the same time preserve the Freedom of Exercise and Freedom of Conscience Clause, let us look to a document prepared by Thomas Jefferson, second only to the Declaration of Independence: "The Statute for Religious Liberty in Virginia," dated June 12, 1776. Article XVI of the statute provides: "That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience... " Thus it is that religion is a personal matter, the efficacy of which is dependent upon its being a voluntary offering directed only by reason and conviction.
Without offering any apology should I be accused of indulging in religious emotionalism, it is my fervent hope, born of considered reason and deep conviction, that "In God we trust" may never be removed from the public schools, the public affairs and the governmental structure of this State. The determination of the validity of specific exercises in the public schools depends upon specific facts involved and applicable law. If I can be of further help to you in providing legal guidance within the delicate area of valid action in the narrow passageway between the two great walls of separation of Church and State and Freedom of Exercise of Religion, I shall be happy to be of assistance.
September 20, 1963
MOTOR FUEL TAX
I am in receipt of your letter in which you asked "Is a gasoline supplier, selling at tank wagon price, considered the retailer when the station premises are leased to a lessee-dealer and the gasoline is consigned to him?"
For the purposes of receiving the two-per-cent refund under Georgia Code Ann. 92-1407 (e), the supplier or distributor in such a situation would not be considered a retailer so as to qualify for the two-per-cent refund. In this connection I refer you to an official opinion of the Attorney General dated October 17, 1949, which opinion is found inOps. Att'y Gen. 683 (1948-49).

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You also asked if the supplier would have any right to collect this refund and, if so, under what conditions. The refund provided in 92-1407 (e) is limited to "retailers." The appropriations acts which over the years have appropriated the necessary money to pay these refunds have specifically denied refunds to those persons acting in a dual capacity as both a distributor (supplier) and a retailer. In this connection see Georgia Laws 1949, page 1517, and the most recent Appropriations Act, Georgia Laws 1963, page 245. The distributor is allowed a type of refund which is provided for in 92-1407 (c).
These refunds are a matter of legislative grace, and in its wisdom the Legislature may allow it to one person and disallow it to another. In this situation the Legislature has specifically chosen to allow the two-per-cent refund provided in 92-1407 (e) to retailers who are exclusively retailers. The Legislature has chosen to limit a distributor (supplier) to the one-per-cent refund provided in 92-1407 (c). A distributor (supplier) functioning in both capacities as both a retailer and a supplier is specifically prohibited by law from collecting both refunds and is limited to the refund of one-per-cent in 92-1407 (c).
September 23, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
I am pleased to acknowledge and reply to your letter wherein you ask my opinion on the following question:
"Inasmuch as the DeKalb Junior College is owned, operated and controlled by the DeKalb County Board of Education, is it an extension of the secondary school program in DeKalb County?"
You state in your letter:
"In order for the DeKalb County Board of Education to qualify for federal funds under the National Defense Education Act to purchase equipment for the DeKalb Junior College, it is necessary to have a statement as to the legal status of the DeKalb Junior College as a part of the public school system in DeKalb County."
I call your attention to Article VII, Section VII, paragraph 1 of the Constitution of the State of Georgia (Georgia Laws 1962, p. 982) which provides in part:
"The Board of Education of DeKalb County is hereby authorized to establish, acquire, construct, maintain, operate, improve and administer a junior college in said county...."
Your further attention is called to Georgia Code Ann. 32-933, (Georgia Laws 1963, pp. 617, 619) which provides in part:
"The Board of Education of any County School District or the governing body of any Independent School System shall

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have the right to establish one or more high schools or junior high schools as in their opinion may be necessary and may be possible through local taxation funds and in addition any such governing body in providing an adequate public school system shall have the right and authority either alone or in conjunction with another District or System; (1) to acquire real property and to acquire, construct and equip buildings and facilities for education beyond the twelfth grade . . . ." (Emphasis added)
I can find no Georgia cases relative to the question propounded by you, but courts of other states have indirectly passed on this point. In Words and Phrases, "Junior College" is defined as follows:
"Junior College is a school offering courses on the level of difficulty for the first two years above high school level." Nixon-Clay v. Woods, 176 S.W.2d 1015 (Texas).
Words and Phrases, also offers the following pertinent language :
"since Junior Colleges being mere superhigh schools maintained for local purposes, and not institutions of higher learning . . . ." (Emphasis added) Hemy v. Ouachita School Board, 169 La. G46; 124 So. 841.
It is my thinking that since the DeKalb Junior College is an institution "maintained for local purposes" it would follow that it is an extension of the DeKalb Secondary System.
Furthermore, since the DeKalb Junior College does not accept boarding students it can safely be called an institution maintained for local purposes.
I do not believe that it can be called an institution of higher learning since a student cannot obtain a bachelor's degree in any program of study offered, as might be done in other Establishments commonly called "institutions of higher learning."
Since a junior college is not an institution of higher learning, and since it is maintained for local purposes, then it must necessarily be considered an extension of the secondary system.
In view of the above authorities and my reasoning herein-stated, it is my opinion that inasmuch as the DeKalb Junior College is owned, operated and controlled by the DeKalb County Board of Education, it is an extension of the secondary school program in DeKalb County.
September 26, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for my opinion as to whether or not law books purchased for the Floyd County Law Library are subject to the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended.

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In this connection, it should be noted that the Floyd County Law Library was created pursuant to the provisions of the Act of 1957, approved March 13, 1957, (Georgia Laws 1957, p. 3299). The purpose of this Act, as set out in its title, is "to provide revenue and a source of revenue for the purpose of improving the operation of the courts and promoting justice" in certain counties "by providing an adequate and suitable library for the judges and officers of the courts."
The body created by the Act to govern the operations of the library in each county to which the Act applies is known as the Board of Trustees of the County Law Library and is made up of the senior Judge of the Superior Court of the Circuit in which said county is located, the Ordinary, the Judge of the City Court, if one exists, and one practicing attorney of the county. Funds for carrying out the purposes of the Act are derived from the addition of $1.00 to the court costs assessed in all civil and criminal cases tried, settled or disposed of by plea in the Superior Court, the City Court, if any, and the Court of Ordinary and, under the terms of the Act, may only be expended for those purposes. All books, periodicals, equipment, furnishings, etc., purchased with such funds, or donated to the library, become the property of the county.
In light of this, it appears that such a board, charged, as it is with the duty of sharing in the performance of an essential governmental function, that is, in improving the operation of the courts and promoting justice by providing an adequate and suitable library for the judges and officers of the courts, is an agency of the county in which it is located. 'Therefore, assuming that purchases of law books for the Floyd County Law Library are made by its Board of Trustees in accordance with the Act of 1957, I am of the opinion that they are exempt under provisions of 3(c}2(d) of the Sales and Use Tax Act, as amended, which exempts from Taxation the sale of tangible personal property to counties.
September 26, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an opinion concerning the tax situs of moneys held in trust by lending institutions for the payment of insurance and taxes on property located in Georgia. I understand that these moneys may from time to time be commingled with other funds not related to property located in Georgia, and such funds may, in fact, be located outside the State of Georgia.
These funds are commonly known as "escrow accounts" and are, by their nature and the intention of the parties and the rules of government agencies and controlling lending institutions, funds held in trust. Such trust may be created by Parol Agreement and need not be in writing. Kirkpatrick v. Davidson, 2 Ga. 297 (1847) ; Gordon v. Green, 10 Ga. 534 (1851). If not the subject of an express agreement,

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such funds, by implication of law under these facts, create an implied trust. Epps v. Epps, 209 Ga. 643 (1952).
Georgia Code Ann. 92-160 provides:
"The taxable situs of all intangibie trust property, which trust was or is created by a resident of this State, is hereby fixed and declared to be the county of the State of Georgia of which the settler or maker of the trust is a resident, if living, and the State of which the settler or maker of the trust was a resident at the time of his death, if deceased."
Georgia Code Ann. 92-122 makes provision for a taxable situs of intangible property in another state under certain circumstances. However, the provisions of 92-160 are of a later date, being enacted by the General Assembly of this State in 1939, and should control as the latest expression of the General Assembly.
The commingling of the funds would have no effect whatsoever upon their taxability in Georgia. Evans v. Pennington, 180 Ga. 488 (1935).
The funds are, in my opinion, subject to the Georgia intangible tax.

September 26, 1963

OPINION TO THE DEPARTMENT OF REVENUE

This is in reply to your request for an official opinion in response to the following questions:

"1. Would Intangible Recording Tax be due on a Sales Contract which provides in part as follows: Buyer agrees to buy a house and lot for the sum of $11,500 ; a down payment was made leaving a balance due of $9,309; balance to be paid at $64.15 per month. 'If buyer fails to pay a monthly payment, then contract is void.'

2. Is purchaser entitled to Homestead Exemption under a sales contract which is recorded and reads 'if purchaser fails to pay a monthly payment then this contract is void?'

"3. If Sales Contract is not recorded, is purchaser entitled

to Homestead Exemption?"



The Intangible Property Tax Act of 1953 (Georgia Laws 1953, pp. 379-90) imposes the intangible tax with reference to long-term notes secured by real estate upon the holder of the notes and not upon the owner of the real estate given as security. Ops. Att'y Gen. 787 (1954-56). The person purchasing the home is, therefore, not required to record the instrument nor is the homeowner required to pay the tax. The filing of the security agreement referred to in your letter as a sales contract would have no bearing whatsoever upon a homeowner's entitlement to a homestead exemption.

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A long-term note secured by real estate is defined by the Act as "any note or notes representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title, or by any other form of security instrument by whatever name called, any part of the principal of which note or notes falls due more than three years from the date thereof or from the date of any instrument executed to secure such note or notes and conveying or creating a lien or incumbrance on real estate for such purpose." (Georgia Code Ann. 92-163)
The agreement or "sales contract" referred to in your letter is, therefore, in my opinion a long-term note secured by real estate within the meaning of the Intangible Tax Act. See Ops. Att'y Gen. 776 (1954-56).
October 1, 1963
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
This is in reply to your letter in which you request my official opinion as to the legality of individual county governments' contracting with area planning commissions created under the provisions of Georgia Code Annotated, Chapter 69-12. You specifically ask in your letter whether a county could legally expend tax funds to acquire reports and recommendations or comprehensive surveys and studies for the promotion, among other things, of public health, safety, morals, convenience, and prosperity.
Article VII, Sec. IV, Paragraph I of the Georgia Constitution states as follows:
"Contracts by State, state institutions, counties and municipal corporations with each other or with public agencies, public corporations or authorities; conveyance of existing facilities to public agencies, public corporations or authorities; hospitalization facilities.
"(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."
This provision permits counties to contract for a period not exceeding fifty years with any public agency for purposes authorized by law for the county to undertake. Georgia Code Ann. 69-1202 contemplates not only contract receipts by planning commissions but

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also "funds to be appropriated for the payment of the expenses of the planning commission or the respective share when there is a joint commission."
Construing these sections together it seems clear that a county may enter into agreement with an area planning commission to receive the required benefits and services.
Article VII, Sec. IV, Paragraph I of the Georgia Constitution (Georgia Code Ann. 2-5701) specifies the purposes for which county tax money may legally be spent as follows:
"Taxing power of counties. - - The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except:
1. To pay the expenses of administration of the county government.
2. To pay the principal and interest of any debt of the county and to provide a sinking fund therefor.
3. For educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution.
4. To build and repair the public buildings and bridges.
5. To pay the expenses of courts, the maintenance and support of prisioners and to pay sheriffs and coroners and for litigation.
6. To build and maintain a system of county roads.
7. For public health purposes in said county, and for the collection and preservation of records of vital statistics.
8. To pay county police.
9. To support paupers.
10. To pay county agricultural and home demonstration agents.
11. To provide for payment of old age assistance to aged persons in need, and for the payment of assistance to needy blind, and to dependent children and other welfare benefits, provided that no person shall be entitled to the assistance herein authorized who does not qualify for such assistance in every respect, in accordance with enactments of the General Assembly which may be in force and effect prescribing the qualifications for beneficiaries hereunder; provided no indebtedness or liability against the county shall ever be created for the purpose herein stated, in excess of the taxes lawfully levied each fiscal year under acts of the General Assembly authorized hereunder for such purposes.
12. To provide for fire protection of forest lands and for the further conservation of natural resources.
13. To provide medical or other care, and hospitalization, for the indigent sick people of the county.
14. To acquire, improve and maintain airports, public parks, and public libraries.
15. To provide for workmen's compensation and retirement or pension funds for officers and employees.

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16. To provide reasonable reserves for public improvements as may be fixed by law."
Although it is doubtful whether outright donations would be proper, expenditure of tax funds by the county to secure reports, recommendations, plans, or surveys would not violate the provisions of 2-5701, inasmuch as the information required as a result of the contemplated agreements would be a proper expense incurred in the administration of the county government.
Therefore, I am pleased to advise you that your question is answered in the affirmative.
October 1, 1963
OPINION TO THE HIGHWAY DEPARTMENT
In your letter you request my opinion on the following question:
"Is the State Highway Department authorized to expend its funds upon driveways and parking areas of hospitals constructed with the assistance of financial grants from the Federal Government under Title VI of the Public Health Service Act, as amended, other than such hospitals as are eligible for grants in aid under the provisions of Georgia Laws 1949, page 263, as amended?."
In my opinion your question must be answered in the negative.
Title VI was added to the Public Health Service Act by the Hospital Survey and Construction Act, commonly referred to as the "HillBurton Act," Public Law 725, 79th Congress (42 U.S.C.A. 291, et seq.). That law was enacted for the purpose of assisting the several States in surveying the need for construction of hospitals, and developing programs for construction of such public and other non-profit hospitals as will, in conjunction with existing facilities, afford the necessary physical facilities for furnishing adequate hospital, clinic, and similar services to all their people, and to construct public and other non-profit hospitals in accordance with such programs.
Georgia Laws 1949, page 263, as amended (Chapter 99-16, Georgia Code Annotated.), authorizes grants in aid to any county, municipality, or any combination of the same, or any hospital authority, to assist in the construction of publicly owned and operated hospitals and other facilities. Grants pursuant to said chapter are expressly contingent upon a Federal grant under the provisions of Title VI of the "Public Health Act," as amended. The General Appropriations Act of 1963 provides funds for implementing this law. Georgia Laws 1963, pp. 224, 242).
Georgia Laws 1963, pages 423, 424, makes the following provision:
"Driveways and parking areas of hospitals constructed with the assistance of financial grants from the Federal Gov-

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ernment, authorized by Title VI of the Public Health Act, as amended, may be the subject of expenditures of State Highway Department funds under such conditions as the Board may provide."
I note that both Georgia Laws incorrectly state the title of the Act of Congress amended by Public Law 725.
Construing Georgia Laws 1963, page 423, in pari materia with Georgia Laws 1949, page 263, as amended, it appears that the only hospitals intended by the Legislature in Georgia Laws 1963, page 423, are those public institutions enumerated in the former law.
Any construction of Georgia Laws 1963, page 423, which includes private non-profit hospitals, would, in my opinion, as to such private hospitals, be in conflict with Article VII, Section I, Paragraph II (1), of the Georgia Constitution, Georgia Code Ann. 2-5402 (1) and, possibly, in a given case, with another constitutional provision or provisions. See Bennett v. LaGrange, 153 Ga. 428 (1922).
October 2, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
You ask that I advise you as to whether a county board of education has the authority to promulgate the following policy:
"In the future, any high school student who becomes married will be suspended from school for a 12 month period." Georgia Code Ann. 32-937, provides in part:
"The board of education of any county, city or independent school district is hereby authorized to promulgate rules and regulations concerning the right of married students to attend the common schools of this State."
The language from 32-937 quoted was added by amendment in 1961 by the Georgia General Assembly (Georgia Laws 1961, pp. 20102). Prior to that time there was no Georgia stHtute on this subject.
Prior to the enactment of the amendment, I ruled in an unofficial opinion that county boards of education may not deny students the right to attend school after they are married. Ops. Att'y Gen. 276 (1954-56).
There are no court decisions of record on this point in Georgia; however, in an unofficial opinion issued on October 26, 1961, Ops. Att'y Gen. 183 (1960-61), and based on an interpretation and construction of the amendment to 32-927, supra, I indicated that local boards of education may adopt rules prohibiting married students from attending public schools.
I adhere to the conclusion stated on page 183 of the 1961 Opinion, supra, and I am also of the opinion that the foregoing amendment to

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32-937, supra, absent, of course, consideration of any question on constitutionality of such amendment, does now permit a county board of education to promulgate a rule or regulation suspending (for a definite and reasonable length of time) married students from attending the public schools of a county.
October 7, 1963
OPINION TO THE DEPARTMENT OF REVENUE
You request my opinion regarding the application of the secrecy provision of the Georgia law as it applies to the tax records of public utilities maintained by the State Revenue Department.
Section 92-8414 of the Georgia Code Annotated, the secrecy provision, with reference to information secured by the Commissioner incident to the administration of any tax, contains at the end thereof an indirect exclusion for certain information furnished the county by the Commissioner:
"Nor shall the provisions hereof affect any information which, in the regular course of busineSis, is by law made the subject matter of a public document in any Federal or State office or in any local office in Georgia." (emphasis added) Section 40--2701 provides that:
"All State, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen."
When the two afore-cited sections are considered together, it is readily apparent, there being no prohibition by court order or by law of the State against the public inspection of public utilities tax information at the county level, that the information incident to the assessment of ad valorem taxes on public utilities furnished by the State Revenue Commissioner to the counties is not covered by the secrecy provision of Georgia Code Ann. 92-8414, and that release of same to the public by the Commissioner would not be in violation of said Code section. However, any information obtained by the Commissioner which in the regular course: of business is not furnished to the county in the process of assessing the tax would not be the subject matter of a public document in the county office, and, therefore, would remain covered by the secrecy provision of 92-8414.

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October 7, 1963
OPINION TO THE PURCHASING DEPARTMENT
This is in reply to your letter in which you enclosed a copy of a letter received by you from the Honorable Charles L. Davidson, Jr., Chairman of the Game and Fish Commission, and you request my opinion as to the legality of a purchase totalling $8.00 made by the State from a business concern of Mr. Davidson's.
Georgia Code Ann. 45-107, states, in part:
"Same; chairman; compensation of members; mileage; meetings.-Immediately after appointment, taking the oath of office and qualification, the members of the commission shall meet at any convenient and designated place within the State of Georgia and elect a chairman, and thereafter the commission shall elect a chairman annually. The members of the commission including the chairman, shall each receive $20 for each day of actual attendance of meetings of the commission at such designated places, and actual cost of transportation to and from the place of meeting and their respective homes by the nearest practicable route not to exceed six cents per mile."
In 45-107, I direct your attention to the provision which states that the Chairman and Members of the Game and Fish Commission receive compensation for each day of actual attendance at meetings of the Commission in addition to mileage to and from the place of meeting. You will also note that in 2 of the 1959 "Honesty Act," (Georgia Laws 1959, pp. 34, 35) the law prohibits the State of Georgia from doing business with any corporation or business concern when "a member of any board, bureau or commission of the State of Georgia, ... and who is entitled to or receives compensation per diem in his official capacity or for his official duties, . . :~ is interested in the pecuniary profits of such corporation or business concern. It appears that Mr. Davidson is Vice-President of the Stone Mountain Grit Company and the Davidson Granite Company, from which this purchase in question was made by the Game and Fish Department, and Mr. Davidson is also Chairman of the Georgia Game and Fish Commission.
In view of the above, the purchase of granite made from the above company by the Game and Fish Department constituted an illegal purchase.
October 7, 1963
OPINION TO THE DEPARTMENT OF STATE PARKS
This is in reply to your letter in which you request my advice as to the proper procedure for the Department of State Parks to

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follow in issuing bonds pursuant to the authority granted in Act No. 330 (Georgia Laws 1963, pp. 391-393).
As you state in your letter, the effect of the above Act is to authorize the Department of State Parks to utilize the statutory authority granted the Jekyll Island State Park Authority set out in Georgia Laws 1950, p. 152, (as amended), which gives to that Authority the right to issue and sell negotiable revenue anticipation certificates.
The procedure to be followed in the issuance of such certificates is set out in Georgia Laws 1950, pp. 152, 160-62 15-22. The proeedural steps to be followed are as follows:
(1) The Jekyll Island Authority provides by resolution for the issuance and sale of revenue anticipation certificates for the purpose of paying all or part of the cost of the acquisition, construction, alteration, subdivision, development, improvement, maintenance, and other charges incidental to the improvement of any State park.
(2) The Authority is permitted to issue such type of certificate as it may deem appropriate under 15 of the 1950 Act.
(3) Any such certificate must state on its face that it :shall not be a debt of the State of Georgia.
(4) The certificates authorized by resolution may be issued in one or more series and shall bear such date or dates, mature at such time or times, bear interest at such rate or rates (not exceeding four per centum per annum), be in such denomination or denominations, etc., as such resolution may provide.
(5) Certificates of the Authority shall be confirmed in accordance with the procedure set out in the Georgia Code Annotated, Chapter 87-8.
(6) The certificates may contain such provisions not inconsistent with law as deemed necessary by the Authority, and it may provide for the pledging of all or any part of its gross or net rents, tolls, charges, revenues and incomes.
(7) The Authority may prescribe the procedure by which certificate holders may enforce their rights against the Authority.
The above is a general outline covering steps to be taken by the Authority to issue revenue certificates and include certain provisions to be written into the certificates. Since the Jekyll Island State Park Authority is the legal entity authorized to issue revenue certificates from the sale of which the Department of Parks will benefit, I suggest that this matter be brought to the attention of the Honorable A. J. Hartley, Executive Director and Attorney fo:r the Jekyll Island State Park Authority.

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October 14, 1963
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
You request my opinion concerning the validity of a proposed contract for the installation of nineteen "Highway Welcome Signs" to be erected on the Georgia side of the state line on state road rights-of-way where the various highways enter the state.
As successor to the Department of Commerce the Department of Industry and Trade is empowered, among its other functions and duties, "To plan and conduct a program of information and publicity designed to attract tourists, visitors and other interested persons from outside the State to this State. . .." Georgia Code Ann. 40-2107 (h).
According to the information furnished in your letter of request, the desired signs are the result of creative commercial art as practiced by a professional advertising firm. For this reason, it is my opinion that the Welcome Signs are neither supplies, material, nor equipment, the purchase of which would be required of the Supervisor of Purchases in accordance with Code 40-1906.1.
Therefore, it is my opinion that you are legally entitled to enter into the proposed contract.
October 14, 1963
OPINION TO THE GOVERNOR
This is in regard to your letter in which you request that I advise you whether, as Governor, you are authorized to require, by Executive Order, that all contracts for public work entered into by the various State departments, excluding the State Highway Department and the several Authorities, be issued through the office of the Supervisor of Purchases under such rules and regulations governing other contracts for purchases entered into by the State.
The Constitution and laws of Georgia are silent as to any general use of Executive Orders by the Governor, but the exercise of power through them has developed by use and custom. I can find no legal authority by which you could expand the duties, power and authority of the Supervisor of Purchases, which are codified by statute, by an Executive Order.
I would suggest your requesting the various department heads, excepting the Highway Department, Regents of the University System and the several Authorities, by memorandum, to see that all public works contracts entered into by them be issued through the office of the Supervisor of Purchases under such rules and regulations governing other contracts for purchases entered into by the State until the matter can be brought before the Legislature in January 1964.

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October 14, 1963
OPINION TO THE TEACHERS RETIREMENT SYSTEM
In your letter you asked that we advise you whether it would be all right to place a girl 18 years of age and a resident of Michigan upon your monthly beneficiary benefit list. You stated she was 18 years of age on October 12, and the amount of her monthly benefit is $10.31. The deceased member of the Retirement System had designated her as beneficiary under Option 3.
Although under our Georgia laws a person is not considered of age until he is 21, under Michigan law an infant of 18 can receive and give a discharge for life insurance or endowment benefits not exceeding $2,000 in any one year, if the contract or agreement specifies direct payment to the minor (Act 91, Mich. Stat. 1957). It is my opinion that this would cover a situation such as ours under which the minor has been designated as beneficiary to receive benefits. You can therefore place the beneficiary upon your monthly list and begin making payments after October 12.
October 14, 1963
CONSTITUTIONAL REVISION COMMISSION
This will acknowledge your letter in which you request that I furnish the Public Utilities Sub-Committee of the Constitution Revision Commission with my opinion relative to Ga. Const. Art. IV, 3, para. 1 (unofficially codified as Georgia Code Ann. 2-2601) more specificially, whether this provision should be retained in the Constitution, and whether there are any charters outstanding which make its retention necessary.
This section provides :
"The General Assembly shall not remit the forfeiture of the charter of any corporation now existing, nor alter or amend the same, nor pass any other general or special law, for the benefit of said corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution; and every amendment of any charter of any corporation in this State, or any special law for its benefit, accepted thereby, shall operate as a novation of said charter and shall bring the same under the provisions of this Constitution."
By way of background, it should be said that this provision was made necessary by two decisions of the United States Supreme Court. In the first, New Jersey v. Wilson, 7 Cranch 164, 3 L. Ed. 303 (1812), it was held that the contract clause of the federal constitution (Art. I, Sec. 10, cl. 1) prevented revocation by a state of a grant of immunity from taxation accorded certain Indian lands. In the second

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case, Dartmouth College v. Woodward, 4 Wheat 518, 4 L. Ed. 629 (1819), the contract clause was held applicable to a grant of corporate privileges, thereby invalidating a subsequent act increasing the number of trustees of Dartmouth College.
More specifically, McElreath says of the predecessor to the present provision,
"The object of the provision that any amendment to the charter of a corporation should subject it to the Constitution was to subject it to taxation if it had previously been exempted, ..." McElreath, The Constitution of Georgia 1211, p. 540 (1912)
The restriction upon state legislative power imposed by the Dartmouth College case is, however, limited to some extent by two other rules. First, subsequent cases have tended to limit the Dartmouth doctrine, especially where the grant of privilege derives not from a special grant of the legislature but from a general law applicable uniformily to all coming within its terms. Second, the effect of the doctrine is avoided by the rule that the state may at the time of the grant reserve the right to alter, amend or repeal. Constitution of the United States, Analysis and Interpretation, 82d Cong., 2d Sess., Senate Doc. No. 170 pp. 342-3 (1953). However, the doctrine still has vitality, as evidenced by the 1952 decision in Georgia Railway Co. v. Redwine, 342 U. S. 299 (1952), holding the company entitled to an injunction to enjoin the revenue commissioner from imposing ad valorem taxes against the company contrary to a special charter provision issued in 1833.
Turning now to the specific questions you raise, I know of no way to determine how many charters are outstanding which made retention of this provision necessary. Apparently, the Georgia Railway Company charter is one. I also seem to recall that a question has arisen several times in the past from the Secretary of State's Office in connection with the method of amendment of charters originally granted by special act.
Therefore, in my opinion, a provision similar to 2-2601 should be retained. However, I see no reason why this existing section could not be adopted as a statute, and deleted from the Constitution. At one time, corporate powers were issued directly by the legislature, and the possibility always existed that a subsequent special act could supersede a statutory provision framed in the language of the existing constitutional provision. Under our existing constitution, however, the only corporate powers which the legislature is competent to grant are to public bodies, (See 2-1917), which are not subject to the Dartmouth rule, Hunter v. Pittsburg, 207 U. S. 161 (1907). Also under the existing Constitution, special acts contrary to general laws are void.

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October 16, 1963
OPINION TO THE GAME AND FISH COMMISSION
This is in response to your recent letter in which you ask whether or not the Game and Fish Commission can make a purchase from a business owned and operated by the son of one of the members of the Commission.
Georgia Code Ann. 26-5004, provides :
"Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commisSiion of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than 20 years." (emphasis supplied)
As used in the statute, the word "interest" as used in conection with pecuniary profits of a corporation or other business, is usually held to mean a financial interest in such a business. However, construing the word "interest" in its broadest sense, this word possibly could be interpreted to mean an interest other than financial. It is conceivable that a father could profit from a son's business even though at the time a contract or business arrangement was entered into, the father held no stock or other financial interest in the business.
There is no express statutory prohibition. However, if such an arrangement is entered into between the Commission and a son of one of the members of the Commission, there possibly could be some criticism of such an arrangement, and it would be advisable to use precaution in order to avoid any such criticism.
In attempting to construe the legislative intent of the "Honesty in Government" Act as codified above, which does not specifically deal with a relative of a member of the Commission doing business with the State, such a transaction could fall within the scope of the intent of this Act and a transaction of this nature should be carefully considered and scrutinized.
Please bear in mind, also, the recent memorandum of Governor Sanders requesting that purchases and contracts be made through the State Purchasing Department on purchases of $500.00 or more.

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October 23, 1963
OPINION TO THE INSURANCE DEPARTMENT
In your letter you request my official opinion concerning the legality of a domestic insurer investing funds which amount to less than 5% of its total assets without prior approval of the Commissioner as required by the 1960 Insurance Code, Georgia Code Ann. 56-1027. This section provides as follows:
"56-1027. Special consent investments.-After satisfying requirements of this Chapter, any funds of any domestic insurer in excess of its reserve and capital (if a stock insurer), or surplus (if a mutual or reciprocal insurer), required to be maintained, may be invested without limitation in any investments otherwise authorized by this Title, and, in addition, in such other investments as may be approved by the Commissioner; Provided, however, that approval of the Commissioner is not required except to the extent such investments constitute more than five per cent. of the total assets of an insurer. (Acts 1960, pp. 289, 485.)"
Two types of investments are specified. The first is investments authorized by the Title and specifically set forth in 56-1002 through 56-1023. The sections following 56-1027 are not pertinent. The second is investments as may be approved by the Commissioner, and, of course, encompasses investments not specified in the foregoing Code sections. To this second category is added the proviso that "approval of the Commissioner is not requjred to the extent that such investments constitute more than five per cent of the total assets of the insurer."
Assuming compliance with other provisions of the law, a domestic insurer would be entitled under 56-1027 to invest the funds required to be maintained, which funds do not exceed 5% of the total assets at its discretion. Such investment would not require the Commissioner's approval.
Although the question of whether or not such an investment is or is not an admitted asset is not presented by your letter, it does arise in the communication to your office from the domestic insurer concerned and will, therefore, be commented upon. The only mention of admitted assets as such found in this entire Chapter is in the introductory paragraph of 56-1005. This section deals in essence with amount rather than kind and should not in itself prevent an investment such as herein discussed from being considered as an admitted asset.
October 23, 1963
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter in which you request my official opinion as to whether or not the Insurance Commission is empowered

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by Georgia Code Ann. 56-2704, to determine issues presented by a claim which has arisen under an existing contract for insurance.
As you point out in your letter of request, this section provides that no policy of group insurance shall be delivered in this State unless it contains a provision that the validity of the policy shall not be contested except for non-payment of premiums after being in force two years from the date of issue, or in the alternative, provisions which in the opinion of the Commissioner are equal or actually favor the insured and/or policyholder.
Although the information contained in your request letter coupled with that contained in the letter requesting the Commissioner's determination amply illustrate the facts of this particular claim, I am contained to advise you that in my opinion a determination such as the Commissioner has been requested to make would amount to an unauthorized judicial ruling.
"An administrative body created by an act of the Legislature, has only such powers as are expressely or by necessary implication conferred upon it." Bentley v. State Board of Medical Examiners, 152 Ga. 836, 111 S.E. 397 (1922).
The office of "Insurance Commissioner" was established by the 1960 General Assembly (Title 56, Georgia Code Annotated). Section 56-201 provides that:
"The purpose and function of the Department and the duties and powers of the Commissioner shall be those created and vested by the provisions of this Title."
The powers which are expressly conferred are broad. For instance, 56-216 gives the Commissioner power and authority to make rules and regulations to "effectuate the provisions of this Title" and "to issue interpretative rulings ... as are reasonably necessary to implement provisions of this Title." Section 56-214 specifically authorizes the Commissioner to institute suits or other legal proceedings as may be required for the enforcement of any provision and to prosecute an action in any superior court to enforce any of his orders.
The duties required of the Commissioner are almost as broad. Section 56-218 requires the Commissioner to hold a hearing if required by the provisions of the Title or upon written demand for a hearing made by any person aggrieved by any act, threatened act, or failure to act "if such failure is deemed an act under any provision of this Title."
Nonetheless, the request for determination here under consideration by your office is not within the ambit of any of the foregoing sections nor of any other provisions found in the Title.
The Constitution of Georgia provides:
"The legislative, judicial and executive powers shall forever remain separate and distinct and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided." Georgia Con-

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stitution, Article I, Section I, Paragraph XXIII, 2-123, Georgia Code Annotated.
Judicial power is thus vested in the courts. However, as an administrative officer you are vested with what, for want of a better term, has been called "quasi-judicial" power.
"A judicial function interprets, applies and enforces existing law as related to subsequent acts of persons amendable thereto." Southview Cemetery v. Haily, 199 Ga. 478, 34 S.E.2d 863 (1945).
This does not mean that your office is empowered to make judicial determinations binding on the parties thereto. The areas in which the Commissioner is authorized to exercise quasi-judicial powers are well defined by the act and the determination as requested is not among them.
If the Commissioner were empowered to make a determination such as has been requested, or if he were required to enter an order pursuant to a hearing held as required by 56-218, my unofficial opinion at this time would be that the 1960 Insurance Act which became effective January 1, 1961, could not be construed to give it retroactive force and effect which would impair the obligation of a pre-existing contract or disturb vested rights. Ga. Const Art. I, Paragraph XI, (Ga. Code Ann. 2-302). The facts indicate the master policy was delivered May 1, 1960, eight months before the effective date of the Insurance Act. Despite the language dealing with prohibition found in the Federal Constitution contained in the case of Sparger v. Compton, 54 Ga. 355 (1875), to the effect "That there is no constitutional prohibition against increasing or adding to the obligation of a contract ... [the evil] was impairing, lessening the obligation of contract." Still I feel the better rule and the one which would apply in this situation is stated in the case of Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 311, 125 S.E. 709 (1924), found on page 317 as follows:
"In the case of the Justices of the Inferior Court of Morgan County v. Sparks et al. (6th Ga. R. 439), this court have answered the question in the most explicit terms. The court say in that case, "The objection to a law on the ground of its impairing the obligation of a contract does not depend on the extent of the change which the law may make in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, or imposing conditions not expressed in the contract or dispensing with the performance of those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation and consequently, is within the constitutional prohibition.' Although the constitutionality of the stay-law was not involved in that case, yet the legal rule, applicable to acts of the legislature, impairing the obligation of contracts, was correctly stated, and was again reiterated in Winter v. Jones, lOth Ga. R. 195.''

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October 24, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opinion as to whether sales of tangible personal property to the Jekyll Island-State Park Authority are taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360, et seq.), as amended.
In upholding the taxability of such sales to the City of Marietta Hospital Authority, the Court of Appeals stated in City of Marietta Hos,pital Authority v. Redwine, 87 Ga. App. 629 (1953):
"The hospital authority contends that it is exempt from taxation imposed by the Sales and Use Tax Act by virtue of the following provision of the act: 'The terms "retail sale" and "sale at retail" shall also not include the following: (d) Sales which a State would be without power to tax under the limitations of the Constitution of the State or the United States, together with sales to the State of Georgia, any county or municipality of said State.' Ga. L. 1951, sec. 3 (c) 2 (d), pp. 365, 366 (Code Ann. 92-3403a C (2) (d)). It is contended that the hospital authority is a political subdivision or instrumentality of the City of Marietta, and therefore comes within the meaning of 'municipality' in the above-quoted subsection of the act. The City of Marietta Hospital Authority was created under the provisions of Ga. L. 1941, p. 241, and amendments thereto. Code (Ann. Supp.), 99-1501 et seq. We do not deem it necessary to, and do not decide whether the hospital authority is a political subdivision or an instrumentality of the City of Marietta; but assuming for the sake of argument that it is a political subdivision, such is defined as a person covered by the act in sec. 3 (a) of the act; "Person" includes . . . or other group or combination acting as a unit, body politic or political subdivision, whether public or private.' Code (Ann. Supp.), 92-3403aA."
Later, in Carron City-County Hos,pital Authority v. Oxford, 104 Ga. App. 213 (1961), the same court rejected a request to overrule the Marietta Hosphal Authority case, reaffirming its decision instead. Then in Oxford v. Housing Authority of the City of Barnesville, 104 Ga. App. 797, 798 (1961), in answer to the contention that a local housing authority was not subject to the Sales and Use Tax Act by virtue of the provisions of 3 (c) 2 (d), it said:
"In determining whether the Housing Authority is subject to the sales and use tax act, we find no essential difference be-
tween a housing authority and a hospital authority. The legisla-
tive intent, as discussed by Judge Felton in City of Marietta Hosp. Auth. v. Redwine, 87 Ga. App. 629, supra, shows the legislature did not intend to give an exemption from the payment of sales' and use taxes to any body politic other than those specifically described in Code Ann. 92-3403a C (2)" (emphasis supplied).

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Thus, even though the legislature, in creating the Authority (Georgia Laws 1950, p. 152 et seq.), declared that" [t] here is hereby created a body corporate and politic to be known as the Jekyll Island-State Park Authority which shall be deemed to be an instrumentality of the State of Georgia and a public corporation," I am of the opinion, based on the above authorities, that, insofar as the Sales and Use Tax Act is concerned, sales to the Authority are taxable. If such sales are exempt, the exemption must be found elsewhere.
In the Barnesville case, the Housing Authority, in addition to relying on 3 (c) 2 (d), sought relief elsewhere, urging that the tax exemption provision of the Act under which it was created (Georgia Laws 1937, pp. 210, 230) exempted it from liability for sales and use taxes, as well as all other taxes. The State Revenue Commissioner disagreed with that view, contending that the exemption was limited to property taxes. The court, however, rejected the Commissioner's contentions, stating:
"The Commissioner contends that Code Ann. 99-1132 applies only to the property of the authority; however, the language of the statute does not support this contention. The statute not only provides that 'such property ... shall be exempt from all taxes', but goes further to provide 'such property and an authority shall be exempt from all taxes . . .' (Emphasis ours) Whatever may have been the purpose of the enactment, the legislature has inscribed its intention in the unambiguous words of the statute. If the words of the statute do not describe the legislature's true intent, it has the power to change the law. We do not. See Oxford v. J .. D. Jewell, Inc., 215 Ga. 616, 620 (112 SE2d 601) ." 104 Ga. App. at 799.
Notwithstanding this statement, the Court, under the authority of Thompson v. Atlantic Coast Line R. Co., 200 Ga. 856 (1946), held that, since the sales and use tax Law was enacted subsequently, the exemption did not apply, the clear implication being that, if the sales and use tax had been enacted first, it would have applied.
In the process of determining whether there was anything outside the Sales and Use Tax Act granting a tax exempt status to sales to the Jekyll Island Authority, an examination was made of the Act creating it and its subsequent amendments. This disclosed that until February 10, 1960, the only tax exemption provision contained in the Act was one exempting revenue anticipation certificates issued by the Authority, together with interest thereon and income therefrom, from all taxation (Georgia Laws 1950, pp. 152, 160). In light of the narrow scope of this provision, the fact it was enacted prior to enactment of the Sales and Use Tax Act and the applicability of the Sales and Use Tax Act to authorities in general, all purchases of tangible personal property made by the Authority prior to February 10, 1960, were, in my opinion, taxable.
However, in 1960, the legislature, in amending the Act creating the Authority (Georgia Laws 1960, p. 89 et seq.), repealed all its provisions relating to the issuance of revenue anticipation certificates and substituted therefor provisions authorizing and governing the

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issuance of revenue bonds. In doing so, it broadened the Act's tax exemption provision so that now it extempts from taxation within the state not only bonds and the income therefrom but all property acquired by the Authority, its activities carried on in operating or maintaining the buildings erected or acquired by it, any fees, rentals or other charges for the use of such buildings, and other income received by it (Georgia Laws 1960, pp. 89, 97). Consequently, since the purchase of tangible personal property is an activity necessary to the operation and maintenance of the Authority's buildings, I am of the opinion that sales of such property to the Authority are exempt to the extent that they are made for the purposes specified, i.e., carrying on the operation and maintenance of its buildings.
October 24, 1963
OPINION TO THE STATE BOARD OF COSMETOLOGY
Replying to your letter dealing with the Cosmetology Act of 1963 (House Bill225, approved March 11, 1963) I will answer the questions submitted in the order presented:
Question 1. Under 2, as written, does a tuition-free technical and vocational school operated as a part of the State's public school system under either the State Board of Education or under a local board of education that offers a course in cosmetology qualify as a beauty school, beauty college, or school of cosmetology ?
Answer: A tuition-free technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education that offers a course in cosmetology is not a "beauty school, beauty college or school of cosmetology" within the definition in 2 of H. B. 225, approved March 11, 1963.
Question 2. Under 2, as written, if a tuition-free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education requires a student to pay a tuition or an incidental fee before such student is admitted to study a course in cosmetology, then would such charge be considered compensation and bring the school under the provisions of this Act?
Answer: This question is ambiguous in that you ask if a tuition-free technical or vocational school "requires a student to pay a tuition or an incidental fee before such student is admitted to study a course in cosmetology...."
A school is not tuition-free if a student is required to pay a tuition for a course in cosmetology or other subjects.

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If the charge for incidentals is for tools and materials used, such charges would not bring the school under the provisions of the Cosmetology Act of 1963.
Question 3. Under 2, if a tuition-free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education requires a student to perform work on the public and charge for such services, the charges being remitted in full to the school, would such acts constitute compensation and therefore bring the school under the provisions of the Act?

Answer:

The answer to this question is "No." Practical training is a necessary element in a course in cosmetology. The fact that students practice on members of the public and that a fee is charged for the students' service would not bring a tuition-free technical or vocational school which is a part of the public school system under the provisions of the Cos-
metology Act.

Question 4. Under 2, if the operating authority of a tuition- free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education states to the Board that any tuition or admission fees covering incidental charges or funds received from students for services performed for the public cover only the cost of books, materials or equipment furnished, in such an event, would the Georgia State Board of Cosmetology have the power and right to require the operating authority of such schools to submit their records to the Board or submit their records for examination by the inspectors of the Board, to determine if such charges result in compensation to this school, before the Board relieves such a school from the provisions of the Cosmetology Act?

Answer:

A tuition-free technical or vocational school operated as a part of the public school system, as stated in the answer to Question 1 is not a beauty school, beauty college or school
of cosmetology as defined in the Cosmetology Act of 1963. Therefore, the Cosmetology Board has no juri~diction over such vocational schools and has no greater right to inspect
their records than any other private citizen.

Question 5. Under 3, it is stated that this Act shall have uniform operation throughout the State so that no cosmetologist, beauty shop, beauty salon, beauty school, beauty college, or school of cosmetology shall be exempt from registration.
Does the Georgia State Board of Cosmetology have the authority to require a tuition-free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local

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board of education to register and otherwise perform under this Act?
Answer: No. The Cosmetology Board is authorized to require "beauty schools, beauty colleges and schools of cosmetology" as defined in the Act to register and otherwise comply with the provisions of the Cosmetology Act.
Question 6. Under 5, does the Georgia State Board of Cosmetology have the power to adopt and enforce rules and regulations concerning sanitary conditions in a tuition-free, technical and vocational school operated as a part of the State's Publie School System under either the State Board of Education or under a local board of education?
Answer: No.
Question 7. Under 5, as written, do the inspectors of the Board have the right and power to inspect a tuition-free technical and vocational school operated as a part of the State's Public School System under either the. State Board of Education or under a local board of education for the purpose of reporting to the Board any violation of such rules and regulations concerning sanitary conditions?
Answer: No.
Question 8. Under 5, does the Georgia State Board of Cosmetology have the right and power to set minimum standards for all schools within the State including a tuition-free technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education, and require all schools to meet such minimum standards before they will be accredited by the Board?
Answer: The Cosmetology Board has the authority to adopt reasonable rules and regulations prescribing the sanitary requirements of beauty shops, salons, schools, colleges and schools of cosmetology, as defined in the Act, subject to the approval of the State Board of Health, and the Cosmetology Board has authority to set the course of study for all students of the several schools of cosmetology within the State, as defined in the Act.
The Cosmetology Board, not having jurisdiction over the Public School System of the State of Georgia, is without authority to set minimum standards of sanitation and courses of study in tuition-free technical and vocational schools operated as a part of the Public School System.
Question 9. Under 10 of the Cosmetology Act, does the Board of Cosmetology have the right and power to refuse to give an examination or license to a person unless such person has completed a 1500 hour study course at an

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accredited school or has served as an apprentice in a beauty salon for a period of at least 3000 hours?
Answer: If the words "accredited school" refer to a school as defined in the Act that has complied with all of the provisions of the Act, the answer is "Yes".
If the words "accredited school" are used to refer to vocational and technical schools operated as a part of the Public School System, since such vocational schools are not included in the definition of a beauty school, beauty college or school of cosmetology contained in the Act, and since there are no standards of accreditation for schools not covered in the Act, the matter of accreditation of such schools should be worked out by negotiation and agreement between your Board and the State Department of Education, or amendatory legislation should be introduced.
In this connection it is pointed out that the Cosmetology Act is presumed to protect the public health. The Board could require vocational school graduates to meet the personal health requirement set out in the Act before admitting them to examination. Furthermore, the Board could ascertain by written and practical examination if such students had received the requisite training and instruction and thus possess the skill required to practice the occupation of cosmetologist.
Question 10. In your opinion, under 11, does the $4.00 registration fee required of all persons learning the occupation of cosmetologist constitute a regulatory fee for the purpose of regulating the occupation of cosmetology or does it constitute a tuition charge to such person learning said occupation, or does it constitute an occupational tax?
Answer: The $4.00 registration fee required of "every such person desiring to so learn such occupation" refers to persons learning the occupation of cosmetologist in a beauty school, college or school of cosmetology, as defined in the Act and to persons learning said occupation under a cosmetologist who has had at least three years experience and who has held a license as a Master Cosmetologist for three years. This registration fee does not apply to students in vocational schools.
This fee, in my opinion, is a regulatory fee. It could not be called tuition since it is paid to the State of Georgia and not to a school or instructor; neither is it an occupational tax because the students or learners are not practicing an occupation, but are training for a license to practice an occupation.
Question 11. If the answer to Question 10 should be that this fee is not tuition, then in such an event, will persons learning the occupation of cosmetology in a tuition-free, technical and vocational school operated as a part of the State's

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Public School System under either the State Board of Education or under a local board of education be required to register and otherwise conform to the provisions of this Act?
Answer: This question is answered in No. 10 above. The $4.00 registration fee is not required of students in vocational schools.
Question 12. Do the provisions of 12 apply to a tuition-free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education?
Answer: No. Section 12 applies to beauty schools, beauty colleges and schools of cosmetology as defined in the Act. It does not apply to technical and vocational schools operated as a part of the Public School System.
Question 13. Do the provisions of 13 apply to persons studying or working in a tuition-free, technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education?
Answer: No. Certificates of registration are not required of technical and vocational schools which are tuition-free and operated as a part of the Public School System.
Question 14. Under 15, does the Board of Cosmetology have the right and power to require a tuition-free technical and vocational school operated as a part of the State's Public School System under either the State Board of Education or under a local board of education to register and pay the fee required and, if so, upon refusal of such school to register or otherwise conform to the provisions of this Act, does the Board have the right and power to refuse to accredit such a school?
Ans,wer: The Cosmetology Board is without authority to require a technical or vocational school which charges no tuition and is operated as a part of the Public School System to register and pay the fees prescribed in 15 of the Act.
While the Board could fail to recognize training in vocational schools, as pointed out in the answer to Question 9, I believe such action on the part of the Board would result in either an amendment or repeal of the Cosmetology Act.
Concluding my discussion on the questions submitted, let me point out that the basic issue involved in all of the questions set forth in your letter centers on whether a tuition-free technical or vocational school, operated as a part of the Public School System of Georgia, which offers courses in Cosmetology is a beauty school, beauty college or school of cosmetology as defined in the Cosmetology Act of 1963, and that question has been previously answered on several occasions. I refer specifically to Memorandum dated March

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8, 1963 addressed to C. L. Clifton, Joint Secretary; to the lengthy oral discussion of this Memorandum before your Board at the meeting in July, and to the official opinion of this office rendered on September 9, 1963 to Honorable Claude Purcell, State Superintendent of Schools, copy of which was forwarded to you and to the Joint Secretary.
While the problem presented is a serious one, it is a problem that can be worked out if a proper spirit of cooperation is exhibited between the Cosmetology Board and the vocational training section of the State Department of Education. I am sure the Department of Education is willing and anxious to cooperate with your Board in the matter of complying with sanitation Rules and Regulations; in teaching the courses of instruction prescribed by your Board ; in giving the recommended number of hours of instruction in the various courses taught; and in having qualified instructors in the vocational schools. The sole issue appears to be the collection of the fees enumerated in the Act for schools, teachers and pupils from vocational schools, their teachers and students, which, in my opinion, your Board is without legal authority to charge and the State Department of Education is without authority to pay.
October 24, 1963
OPINION TO THE GAME AND FISH COMMISSION
You state that the State Game and Fish Commission in its meeting on October 14 discussed the salary that should be paid to its Acting Director, and that they voted to ask that an opinion from this Department be submitted as to the proper procedure for setting such salary and how much they should pay.
The Acting Director may receive an emergency appointment for a period of forty-five (45) days through the State Personnel Board. The forty-five days is intended to mean forty-five working days after employment; further, the status of "emergency" is determined by the State Game and Fish Commission rather than the State Merit System. The forty-five-day emergency period may be extended with permission of the Personnel Board.
The Game and Fish Commissioners are empowered to fix the salary of the Acting Director in any amount under such an emergency appointment. However, it appears to me that the salary of the Acting Director should be fixed in an amount not exceeding the compensation of the former Director.
October 24, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opinion as to whether the sale of water by the Jekyll Island-State Park Authority is taxable

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under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360 et seq.), as amended.
In this connection, it should be noted that 3 (c) 3 (i) of the Act defines tangible personal property, as follows:
" 'Tangible personal property means and includes personal property, which may be seen, weighed, measured, felt, or touched, or is in any other manner perceptible to the senses. The term 'tangible personal property' shall not include stocks, bonds, notes, insurance or other obligations or securities."
Thus, it seems clear that water is tangible personal property within the statutory definition of the term and that its sale is subject to the sales tax when made at retail, unless specifically exempted by the Act. The Act, however, only makes specific reference to water in one instance. That reference is contained in 3 (c) 2 (f), which reads:
"The tax levied by this Act shall not apply to the sale of water by municipal corporations or other political subdivisions of this State (not including mineral water or carbonated water, or any water put up in bottles, jugs, or other containers, all of which are not exempted.)"
Since the Authority, in my opinion, is neither a municipal corporation nor a political subdivision of this State, retail water sales made by it are taxable.
October 24, 1963
OPINION TO THE DEPARTMENT OF AGRICULTURE
This reply is in response to your recent letter in which you ask my opinion as to whether or not fertilizer inspection fees must be collected on sales to the Federal Government and its various installations.
The applicable statute, Georgia Code Ann. 5-1006, in part provides:
"(A) There shall be paid to the Commissioner for all commercial fertilizer offered for sale, sold, or distributed in this State an inspection fee at the rate of 30 cents per ton: Provided, that sales to manufacturers or exchanges between them are hereby excepted...." (emphasis supplied)
Attention must be paid to the intent of the Legislature when attempting to construe a statute. In Thomas v. State, 81 Ga. App. 59, 58 S.E.2d 313 (1950), the court stated:
"A cardinal principle in the construction of statutes is that the construing authority must look to the intent of the Legislature."

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It is clear that the statute quoted in part above imposes a duty on one who sells or distributes fertilizer to collect the inspection fee thereon. This statute does not impose an inspection fee on the Federal Government or upon the consumer by implication or otherwise. Upon reading the statute, it is equally clear that it is of a regulatory nature and not enacted solely for the purpose of raising revenue.
In Novak v. Redwine, 89 Ga. App. 755, 81 S.E.2d 222, (1954), the court stated:
"Statutes must be construed strictly so as to resolve doubt in the taxpayer's favor and their meaning cannot be extended by implication."
Considering the Novak case, it must be concluded that the language in this statute pertaining to one who sells or distributes fertilizer cannot be extended by implication to include a consumer. It is true the Novak case is a tax case. However, the rule to determine the construction of the statute remains the same. Therefore the inspection fee should be collected and paid to the Commissioner of Agriculture for all commercial fertilizer offered for sale, sold or distributed in this State, with the exception provided in said statute.
October 25, 1963
ARRESTS
You inquired about the authority of a constable to .make an arrest as provided in Georgia Code Ann. 24-817, and particularly sub-paragraphs 5 and 6. You stated that "The question is, does the constable have the same authority as a Sheriff or Deputy to make an arrest as long as he is in his own District and when a breach of the peace is involved?"
It is my understanding that when a warrant is issued and placed in the hands of the constable, it is his duty to make the arrest and return the person together with the warrant to the Justice of the Peace who issued the warrant, there to be disposed of.
As to a constable making an arrest when a breach of the peace is involved and no warrant has been issued, if the offense is being committed or was committed in the presence of the constable, he would have the right to make an arrest. This authority is derived from 27-207 which reads as follows:
"27-207. Arrest without warrant.-An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause where there is likely to be a failure of justice for want of an officer to issue a warrant."
A constable has authority without warrant to arrest a person violating penal statutes in his presence. In addition, see Georgia

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Code Ann. 27-211, which provides that a private person may make an arrest; also 27-212 dealing with the duty of a person arresting without a warrant.
October 29, 1963
OPINION TO THE PURCHASING DEPARTMENT
This will acknowledge your letter in which you asked a question concerning legality of a transfer of an ambulance-type vehicle from
the Federal Government to the Georgia Forestry Commission, with-
out exchange of funds.
Georgia Code Ann. 43-206 provides in part:
"The Forestry Commission shall have power and authority
to . . . receive gifts or donations made to it and to expend the
same under the terms of such gifts or donations ; . . ."
As there is no expenditure of funds the transfer of the ambulance type vehicle is in the nature of a gift or donation. The acceptance is within the statutory authority of the Forestry Commission, subject to the terms of such gift or donation.
October 31, 1963
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opinion as to whether an agreement purporting to extend the period within which the State Revenue Commissioner may make a sales and use tax assessment is valid where the agreement is executed by the taxpayer after the expiration of the period prescribed by the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended, for making such an assessment, or after the expiration of a valid waiver previously executed by the taxpayer.
As originally enacted, 26 of the Act (Georgia Laws 1951, pp. 360, 387) established a three-year period of limitations on the Commissioner's power to make assessments. At its 1960 session, the Legislature amended the section to permit the Commissioner and a taxpayer to extend this period, in writing, for whatever time they might agree upon (Georgia Laws 1960, pp. 941, 947). Additional extensions were also authorized, but in order for any extension to take effect it is necessary that the agreement be obtained prior to the expiration of the statutory period or some other period previously agreed upon.
Since the language of 26, as amended, is substantially like that of the corresponding provisions of the federal law fixing the period of limitations on the power of the Commissioner of Internal

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Revenue to assess the amount of taxes imposed by Federal law and governing extension agreements, I am of the opinion that the Legislature intended to bring Georgia law on these subjects in line with Federal law. For the corresponding provisions of Federal law, see the Internal Revenue Code (1954), 6501(a),(c) (4), 26 U.S.C.A. 6501 (a), (c) (4).
According to Mertens, Law of Federal Income Taxation 57.51, the effect of these provisions in the Federal law on a waiver executed after the expiration of the three-year period, or some other period previously agreed upon, has been settled for some time. Such a waiver is invalid and ineffective to extend the period of limitation for the making of assessments. Kohlhase v. Commissioner, 181 F. 2d 331 (6th Cir. 1950) ; Estate of James F. Suter, 29 T. C. 244 (1957). Similarly, I am of the opinion that a sales and use tax waiver taken under the circumstances mentioned in your letter would also be invalid and ineffective.
October 31, 1963
OPINION TO THE STATE BOARD OF MEDICAL EXAMINERS
The questions on which your Board desires the opinion of this office are:
1. Is it lawful for a graduate registered nurse to give intravenous and intramuscular injections under the supervision and direction of a licensed doctor of medicine?
2. If so, must the licensed doctor of medicine be physically present while such injections are given?
3. Who would be legally liable for the negligent acts of a graduate registered nurse in giving such injections?
In my opinion, a medical doctor may delegate to a graduate registered nurse the task of administering intravenous and intramuscular injections, with the doctor having the sole authority to prescribe the drugs or medicine to be injected, the amount of the dosage or injection and the frequency thereof.
I do not believe that it is necessary for the doctor to be physically present while the injections are being given. In this connection, I would point out that intravenous feeding (glucose and saline solution) requires considerable time and a doctor would be greatly restricted in the services that he performs if he were required to be physically present when such injections are given.
As to legal liability for negligent acts of the nurse in giving injections, you are advised that so long as the nurse is carrying out the doctor's orders, she is the doctor's agent and the doctor is responsible for her negligent acts.
However, should the nurse depart from the doctor's instruction

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and exercise her own judgment, such as increase the dosage or the frequency thereof, then she would be acting on her own (would be guilty of practicing medicine without a license) and would be legally liable for any damage that might be done. In this connection, your attention is called to the case of Mullins v. Duvall, 25 Ga. App. 690 (1920), wherein a doctor told his patient that if he should be out of the office when the patient came to the office for an injection, to let his office maid give the injection, which the patient did; and the maid broke off the hypodermic needle in the patient's arm. The Court held that the patient's complaint against the doctor stated a cause of action.
November 4, 1963
OPINION TO THE DEPARTMENT OF LABOR
I am in receipt of your letter concerning the Private Employment Agency Act (Georgia Laws 1959, p. 283 ;Georgia Code Ann. Chapter 84-41) and its applicability to a situation in which an incorporated employment agency has changed officers of the corporation without previously notifying and securing the approval of the Commissioner of Labor as required by 84-4102(q).
Specifically, you have asked whether such failure to obtain your prior approval of a change in the officers of the corporation would warrant your revocation of the license of the agency previously granted.
Since the incorporated agency clearly is guilty of a technical violation of the Act, you, as Commissioner of Labor, are authorized to suspend or revoke the license by following the procedures set forth in Georgia Code Ann. 84-402(p), which include ten days written notice to the agency specifying the charge against it and setting a date for a public hearing to determine whether the license should be suspended or revoked. The fact that the change of officers of the agency is a fait accompli would not alter the legal requirement that your approval of the change of officers be obtained.
Of course, you must approve the change in officers unless such change could be rejected for a reason for which an original application for license might have been rejected if the person or persons in question had been mentioned therein (Georgia Code Ann. 84-4102(q) ).
If you feel that, had the agency given proper notice, you would have approved the change in officers, you may prefer not to institute a suspension or revocation proceeding against the agency. In that case, if you still feel that the agency should be punished in some manner, Georgia Code Ann. 84-9963 provides that any person found guilty of a violation of any section or part of Chapter 84-41 shall be deemed guilty of a misdemeanor, pursuant to which, upon conviction, a corporation could be fined.

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November 4, 1963
COURT OF ORDINARY
We are in receipt of your letter in which you asked certain questions relative to the jurisdiction of the court of ordinary over traffic offenses pursuant to Chapter 92A-5 of Georgia Code Annotated.
Specifically, you asked whether the court of ordinary has exclusive jurisdiction over the trial of traffic cases in the county pursuant to 92A-501, 502 and 511 which would preclude the trial of such cases in the superior courts (or in city or county courts where they are located in a city or county).
While the foregoing code sections do enlarge and extend the jurisdiction of the courts of ordinary to cover the trial of traffic offenses in misdemeanor cases, and while 92A-511 states that "ordinaries shall have exclusive jurisdiction of all cases originating in the county," it has been held that such statutes did not take from the superior courts jurisdiction to try misdemeanor violations of traffic laws and that such courts have retained concurrent jurisdiction of such offenses. Smith v. State, 62 Ga. App. 733 (1940). The same would be true of city and county courts. The term "exclusive" as used in 92A-511 obviously is intended merely to exclude jurisdiction of a recorder's court in cases in which the offense is committed outside of a municipal corporation, and in turn the recorder's court is given exclusive jurisdiction as against the court of ordinary over offenses committed within the limits of a municipality.
From the foregoing, it is apparent that a sheriff arresting an offender for an offense committed in a county outside the corporate limits of a municipality may, at his option, bring the offender before the court of ordinary, the superior court, or, in jurisdictions where they are located, city and county courts.
You further asked whether the sheriff's fees in traffic cases are the same where the offender is brought before the court of ordinary :Js when the offender is brought before the superior court. Section 92A-512, which authorizes arresting fees for sheriffs, would seem to contemplate that such fees would be the same regardless of which court an offender might be brought before, where two or more courts have concurrent jurisdiction.
November 5, 1963
OPINION TO THE DEPARTMENT OF BANKING
In your letter you enclosed a proposed loan participation agreement and requested I review the same to determine whether the sales of interest in loans as contemplated therein are without recourse, and thus not subject to the 20% restriction of 13-2013 of the State Banking Laws (Georgia Code Ann. 13-2013).

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The agreement is proposed between a savings and loan association and a bank. The association would sell to the bank a 75% individual interest in various real estate loans which the association had previously made, and the agreement has certain covenants substantially as follows:
1. The association is to select and offer loans, together with a completed prescribed form, documents and other information as requested, and a Participation Certificate is to be executed for each.
2. Each sale is to be "without recourse" upon the association, and certain warranties are enumerated.
3. The association agrees to service the loans, but certain default provisions are set out. First, in event of default, the association, at its option, may repurchase. Or, should default continue 60 days or more, upon demand of the bank, the association agrees to repurchase the bank's interest.
(Additional covenants and terms are set out in succeeding paragraphs of the agreement, but the only ones of interest are the first three.)
There is a readily apparent inconsistency between paragraph two, which speaks of "without recourse" sales, and paragraph three which proceeds to enumerate the recourse the bank would have in the event of default.
An examination of the sample Participation Certificate shows it adopts as its terms those prescribed in the Agreement. Therefore the construction of the Agreement will control for each sale.
Despite the assertion of paragraph two of the Agreement that the sales are "without recourse," I am of the opinion the later terms of paragraph three which set forth in specific detail the recourse of the bank control, and the sales are "with recourse," certainly insofar as the Banking Department is concerned.
In 10 C.J.S. Bills and Notes 214 b.(2) (1938), it is stated in part:
"The usual mode of making a qualified indorsement, so as to limit the liability of the indorser, is by adding to the signature of the indorser the words 'without recourse,' . . . . Such an indorsement indicates a purpose not to assume a liability on the paper or responsibility for its payment and is sufficient to transfer title, but, provided there is no fraud, concealment, or misrepresentation, it exempts the transferer from all liability as indorser, except that he is still chargeable with implied warranties as a seller of the paper, ...."
These implied warranties are as to genuineness, good title, capacity of parties, and no knowledge of impairment of validity of the instrument. Here, there is an additional guaranty or warranty, and it is as to the payment and protection of the purchaser. The association insures payment and the protection of the bank against loss,

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even granting the bank power to compel repurchase. Such a procedure is incompatible with the term "without recourse."
Regulation II, issued by the Department of Banking on March 1, 1955, stated in part:
"paper subject to repurchase agreements, will be considered as held with recourse on the dealer even though the individual instruments may be endorsed without recourse." And further:
"under an agreement whereby the dealer is to repurchase the automobile repossessed by the bank, for the balance due on the contracts, the contracts are considered to be held by the bank with recourse on the dealer."
It is my opinion the transactions contemplated by the proposed Participation Agreement would parallel those set forth in Regulation II as being "with recourse," even though termed "without recourse" by the Agreement, and would be subject to the limitation of 20% of capital and surplus, the same as any other "with recourse" obligations.
November 5, 1963
CRIMINAL LAW
This will acknowledge receipt of your letter in which you request an interpretation of the term "moral turpitude," specifically as involved in disbarment proceedings, in citizenship, and as affecting other rights as a citizen of Georgia.
I find that there is no conclusive and specific definition of the term "moral turpitude." The courts of the various states have differed widely as to its meaning and the courts of Georgia, though they have defined the term, have not done so in such a way as to permit a definite answer to your inquiry.
Several of the various definitions and interpretations which I have discovered are cited below. As y.ou can see, the term could cover almost any crime, including misdemeanors as well as felonies. James v. State, 73 Ga. App. 834 (1946).
The various interpretations of the term "moral turpitude" by Georgia courts (including federal courts in this State) are as follows:
"It being settled that the original indictment under section 175 charged a crime, and that crime being one involving moral turpitude, that is to say, a crime which is malum in se." Jenkins v. State, 14 Ga. App. 276, 279 (1914). An offense or act is malum in se which is naturally evil as adjudged by the sense of a civilized community.
"The word 'moral' which so often precedes word 'turpitude', does not seem to add anything to the meaning of the term other

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than that emphasis which often results from a tautological expression." Hughes v. State Board of Medical Examiners, 162 Ga. 246, 255, 134 S.E. 42 (1926).
"We think that the term 'moral turpitude' is of such obvious significance that it was not incumbent on the judge, in the absence of a written request, to omit to define it." Perren v. State, 69 Ga. App. 417, 421, 25 S.E.2d 823 (1943).
" 'Turpitude' in its ordinary sense involves the idea of inherent baseness or vileness, shameful wickedness, depravity.
* * * In its legal sense it includes everything done contrary
to justice, honesty, modesty, or good morals." Huff v. Anderson, 212 Ga. 32, 34, 90 S.E.2d 329 (1955), 52 ALR 2d 1310.
" 'Moral turpitude' means baseness. It is more than the civic deficiency manifested by breaking a known law. It is serious delinquency, measured by the general moral standards of the time and country, of a sort or nature that would be regarded as such, independently of there being any law against it." Skrmetta v. Coykendall, 16 F. 2d 783, 784 (N.D. Ga. 1926).
"The words 'involving moral turpitude', as long used in the law with reference to crimes, refer to conduct which is inherently base, vile, or depraved, contrary to accepted rules of morality, whether it is or is not punishable as a crime. They do not refer to conduct which, before it is made punishable as a crime, was not generally regarded as morally wrong or corrupt, as offensive to the moral sense as ordinarily developed." Coykendall v. Skrmetta, 22 F. 2d 120, 121 (5th Cir., 1927).
November 7, 1963
SCHOOL BUSES
We are in receipt of your letter in which you asked two questions concerning traffic laws.
First, you asked whether, on a four-lane highway where there is a single dividing strip in the center of the lanes, a driver must stop when approaching from the opposite direction of a school bus which has stopped.
Section 68-1667 of the Georgia Code Annotated requires that drivers upon a highway "upon meeting or overtaking from either direction any school bus which has stopped on the highway for the purpose of receiving or discharging any school children shall stop the vehicle before reaching such school bus. . . ." Subsection (c) of said section, however, provides that a driver need not stop when approaching a school bus upon a highway "with separate roadways" or "upon a limited or controlled access highway...."
If the four-lane highway is separated by a grass strip or other physical dividing median, it is our opinion that a driver approaching

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a school bus need not stop. However, if the four-lane highway is separated merely by a painted strip dividing the two directions, it would appear from the foregoing that a driver approaching the school bus would be required to stop.
Secondly, you asked whether the Ordinary has jurisdiction over a traffic violation occurring inside the limits of a city. If there is a recorder's court or any other municipal court, the Ordinary would not have such jurisdiction. See Georgia Code Ann. 92A-511. See also an unofficial opinion of this office, dated November 4, 1963, relative to the jurisdiction of the Court of Ordinary over traffic violations.
November 7, 1963
SEPARATION OF CHURCH AND STATE
I have your inquiry as to the legality of holding or conducting a public school graduation exercise in the St. Mary's Church.
You are aware, of course, from recent decisions of the Supreme Court of the United States, and my opinion to the State Superintendent of Schools of September 18, 1963, that it is now illegal for any prayer, Bible reading, or religious ceremony to be conducted in the schools by school authority.
It is my understanding, however, that in your particular case the school will only use the physical building of the church and that no religious ceremony will take place or be involved in the graduation.
In my opinion, the mere use of the church building, wholly disassociated from the activities of the church in carrying on and fostering its religion, would not be violative of any constitutional provision or court ruling. It would seem in such case that there could not be any question of fostering or promoting religion and that the use of the church building by reason of necessity, convenience or utility would not contravene or impinge upon any court decision, or the rulings of this office.
November 7, 1963
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your inquiry relative to certain life insurance companies delivering with the policies sold certified copies of resolutions adopted by their Boards of Directors, the said resolutions forming a part of the policy contract as by rider thereto.
Section 56-2402 of the Georgia Code Annotated provides as follows:
" 'Policy' means the written contract of or written agreement for or effecting insurance, and includes all clauses, riders,

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endorsements and papers attached or issued and delivered for attachment thereto and a part thereof."
Section 56-2410 (1) of the Georgia Code Annotated provides:
"No basic insurance policy or annuity contract form, or application form where written application is required and is to be made a part of the policy or contract, or printed rider or endorsement form or form of renewal certificate, shall be delivered or issued for delivery in this State, unless the form has been filed with and approved by the Commissioner. This provision shall not apply to surety bonds, or to specially rated inland marine risks, nor to policies, riders, endorsements, or forms of unique character designed for and used with relation to insurance upon a particular subject, or which relate to the manner of distribution of benefits or to the reservation of rights and benefits under life or accident and sickness insurance policies and are used at the request of the individual policyholder, contract holder, or certificate holder."
The sample copy of such a resolution of a Board of Directors which I have before me provides for the payment of annual dividends during the life of the policy from certain funds accruing to the insurance company.
It appears that such a resolution delivered along with the policy forms would unquestionably constitute an integral part of the contract of insurance, and clearly would fall within the provisions of the two code sections cited above. Also, the resolution does not come within any of the exceptions provided for in 56-2410 (1), supra.
It is my opinion that the type of resolution by the Board of Directors of a life insurance company such as that to which you refer, delivered to the assured along with the policy of insurance, constitutes a rider to and basic part of the policy and must be filed with your office and approved by you before being issued by an insurance company, as is required by 56-2410 (1), supra.
November 8, 1963
INTOXICATING LIQUORS
You have requested my opinion concerning the condemnation of an ordinary vehicle for carrying untaxed whiskey in a wet county in Georgia.
Reference is made in your letter to the recent Act of the General Assembly (Georgia Laws 1963, page 135) which authorizes Department of Revenue agents to make certain seizures and gives them certain other powers.
The Georgia Court of Appeals in the case of Clements v. State, 85 Ga. App. 614 (1952), held that the only authority to condemn a vehicle in a wet county was Georgia Code Ann. 58-1021, which applied only to private, contract, and common carriers.

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I am in complete agreement with your conclusions concerning the relationship of these two laws, and it is my opinion that the Revenue agents do not have authority to condemn a vehicle used to transport whiskey in a wet county where the vehicle is not operated by a private, contract, or common carrier.
My advice to the Revenue Department was simply that the Revenue agents of the State Revenue Department are now on the same footing as other law enforcement officers. I do not believe that the Act of 1963 gave them any greater authority than the other officers now have.
November 8, 1963
GAMBLING
This is in reply to your request for an opmwn concerning the operation of slot machines for profit and the sale of alcoholic beverages.
The Court of Appeals of Georgia, in the case of Miller v. State, 87 Ga. App. 408 (1953), held that under the provisions of Georgia Code Ann. 26-6502 it is a misdemeanor to carry on any lottery and that, under the same Code Section, it is also a misdemeanor for any person to keep, maintain, employ, or carry on any other scheme or device for the hazarding of any money. It also held that since a slot machine is a device for the hazarding of money, one who keeps and operates a slot machine is guilty of a misdemeanor under this section. The possession of a Federal gambling tax stamp would not authorize any person in this State to engage in any gambling or lottery operation.
Screven County has not adopted the Revenue Tax Act to legalize and control alcoholic beverages and liquors (Georgia Laws, 1937-38, page 103 Extra Sess.), and such county is therefore one of the "dry" counties of this State. Georgia Code Ann. 58-102 would therefore apply in Screven County, and that Code section makes it unlawful for any person to sell, keep for sale, furnish in public places, keep on hand at a place of business or at any social, fraternal or locker club, or otherwise dispose of any of the prohibited liquors described in 58-101. This prohibition would apply to both mixed drinks and bottled liquors. Raines v. State, 96 Ga. App. 727 (1957); Martin v. State, 96 Ga. App. 557 (1957).
November 13, 1963
STATE PURCHASING DEPARTMENT
You have requested an opinion from this office on whether it is legally proper for the State Purchasing Department, on behalf of

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the Department of Revenue, to enter into a contract for certain electrical work to be performed on leased premises in the Old Produce Building, Central Avenue and Hunter Street, Atlanta.
Generally speaking, of course, it is necessary for the State to have title in fee simple to property before expending State funds for the permanent improvement of property. Georgia Code Ann. 91-117; Ops. Att'y Gen. 398 (1962) ; Ops. Att'y Gen. 573 (1954-56) ; Ops. Att'y Gen. 109 (1952-53). An exception to the general prohibition against improvements to property in which the State had less than a fee simple interest was approved in Ops. Att'y Gen. 398 (1962), wherein it was held that improvements which were easily and readily removable from the premises could be made with State funds notwithstanding that the State did not own the property.
In the instant situation, we believe that the proposed work, if it can be approved, must be approved on the basis that the improvements to the leased property are not capital improvements in the ordinary sense, but are more in the nature of an incident to the installation of special electrical equipment which the Revenue Department proposed to install and operate on the premises.
We are advised that the wiring and other electrical work neces. sary in this instance is of a special nature tailored to the peculiar
requirements of the electrical equipment to be installed, that such wiring and other electrical work is not normally done in office premises, that the premises are leased for the purpose of using the equipment to be installed, which equipment cannot be used without the special wiring, and that the wiring itself, except for use of special equipment of the type to be installed by the Revenue Department, would not improve the premises for other general purposes or otherwise enhance the value thereof.
I do not believe that the Legislature intended that the law be so strictly construed that the State is powerless to make incidental expenditures on leased property, which expenditures are dictated by practical business considerations and which, if not made by the State, would deny the State the maximum benefits of the use of the premises or would result in considerably greater loss to the State before the premises could be used for the purposes intended.
Since the proposed electrical work to be done is more in the nature of an expense than a capital improvement (and would undoubtedly be so classified for tax purposes, for example), it is my opinion that it can and should be considered an incident to the installation of special machinery and equipment instead of being considered a permanent capital improvement to leased premises on which the expenditure of State funds would be prohibited.
I should point out that the conclusion herein reached should be strictly construed in the light of the nature of the work to be done in this case, and should not be interpreted as authorizing the wholesale expenditure of State funds for improvements to leased premises under the guise of incidental operating expenses. The Purchasing Department should continue to examine requisition for improvements to leased property on its individual merits.

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November 15, 1963
SCHOOL ATTENDANCE
This is in reply to your inquiry in reference to the question of a fourteen year old boy refusing to attend public school.
Section 32-2115 of the Georgia Code Annotated provides:
"Visiting teachers and attendance officers, after written notice to parent or guardian of a child, shall report to the juvenile, superior, city, or other court having jurisdiction, any child as a delinquent who absents himself from school in violation of this Chapter. The judge of said court may place said delinquent in a home, or in a public or private institution, where school shall be provided for such child." Section 32-2112 of Georgia Code Annotated provides:
"Any visiting teacher or attendance officer appointed under the provisions of this Chapter, who fails to perform the duties of this office shall, upon the recommendation of the county or independent school system superintendent, be removed from office by the county or independent school system board of education."
Also, 32-9914 of the Georgia Code Annotated provides for a fine or imprisonment of any parent or guardian who has control or charge of a child and violates any of the provisions of the compulsory school law.
I would recommend to you that, inasmuch as the child actually resides in Douglas County, you communicate with the visiting teacher of Douglas County and give him the information on the case and have him handle the matter with the proper court of Douglas County. I suggest further that you take this action in view of 32-2112, quoted above.
November 18, 1963
PRACTICE AND PROCEDURE
This is to acknowledge receipt of your letter in which you request our review of an "Agreement Form" concerning rules and regulations in reference to Psittacine Birds.
I have reviewed the affidavit forms and have the following comments regarding their legal validity. In Hartman Stock Farm v. Henley, 8 Ga. App. 255 (1911), the court held that an affidavit is a statement or declaration, reduced to writing and sworn to or affirmed before some officer authorized to administer an oath.
As a general rule of law, any person who has knowledge of facts may make affidavit thereto. The test of the sufficiency of an affidavit is whether it will support a perjury or false swearing prose-

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cution, if false. There must be a present unequivocal declaration or act on the part. of the affiant in which he takes upon himself the conscious obligation of an oath, and the acts of the officer and of the affiant must conclusively indicate that it was the purpose of one to administer and of the other to take an oath. In other words, an oath is a conscious assumption of a punishable legal obligation to speak truthfully, such as swearing that the individual concerned has read and understands the rules and regulations promulgated by the State Board of Health regarding Psittacine Birds.
The Supreme Court of Georgia said in the case of Beach v. Averett, 106 Ga. 73 (1899), that "a complete affidavit should have an oath, signature, and jurat, but seal is ordinarily unnecessary." The reason for having jurats sign such documents is that such is presumptive evidence that the affiant signed in his presence and has complied with the statements in the affidavit.
I suggest the following form if you desire to continue the enclosed forms as affidavits:
Affidavit.
State of Georgia
County of ------------------------------------
This is to certify that I have read and understand the contents of the Rules and Regulations of the State Board of Health concerning the Importation, Purchase, Breeding, Giving Away, Sale or Offer of Sale of birds of the Psittacine Family as adopted by the State Board of Health on October 21, 1954 and amended on April 20, 1955. I further swear that it is my purpose and intention to breed or deal with psittacine birds during the year ________________ only in compliance therewith.
Signature
Sworn and subscribed before me
this __________ day of ----------------------------, 19________.
Notary Public.
November 19, 1963
CRIMINAL LAW
This will acknowledge receipt of your letter in which you request information concerning the ability of the sentencing judge to alter a man's sentence to run concurrently rather than consecutively after he has served a number of years on said sentence.
The law in Georgia appears well settled on this point. In Phillips v. State, 95 Ga. App. 277 (1957), the Court held as follows:

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"It has long been the rule in this State that the trial court has power to amend and modify its sentences only at the term during which they are imposed. Gobles v. Hayes, 194 Ga. 297 (1) (21 S.E. 2d 624) ; Auldridge v. Womble, 157 Ga. 64 (3) (120 S.E. 620) ; Porter v. Garmony, 148 Ga. 261 (96 S.E. 426) ; Rutland v. State, 14 Ga. App. 746 (82 S.E. 293); Matthews v. Swatts, 16 Ga. App. 208 (84 S.E. 980) ."
This rule is substantiated by Georgia Code Ann. 27-2502:
"Provided, that after the term of court at which sentence is imposed the superior court judges shall have no authority to suspend, probate, modify or change the sentence of said prisoners except as otherwise provided."
However, the State Board of Pardons and Paroles has ruled as follows:
"Recommendations from court or public officials, members of juries, or petitions from citizens FOR or AGAINST the applications are not required. However, if such recommendations are obtained and submitted, the recommending parties should set forth fully the grounds or reasons for making the recommendations."
Therefore, it is my conclusion that although the sentencing judge may not change or modify the sentence after the term of court in which it was imposed, he may submit his recommendations to the Board of Pardons and Paroles.
November 19, 1963
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter in reference to the election of the Board of Education of Laurens County.
The Constitutional Amendment providing for the election of the Board of Education of Laurens County is found in Georgia Laws 1962, pp. 1168, 1169. That Constitutional Amendment provides in I, in part, as follows:
"The Board of Education of Laurens County shall be composed of five (5) members, three (3) of whom shall be elected one each from e;:tch road district in the County by the voters of the county at large. The fourth and fifth members shall be elected from the county at large by the voters of the county. The above mentioned road districts shall be the same as those designated in an Act creating the Board of Commissioners of Laurens County, approved August 17, 1911, (Ga. L. 1911, p. 453). No person who resides within the area embraced within the territory of an independent school system shall be eligible to vote for any member of the Board of Education."

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"Said members shall be elected for four (4) year terms except as hereinafter provided. Said members shall be elected at the same time as members of the General Assembly are elected. The first election for members of the Board of Education shall be held at the same time as the election for members of the General Assembly in 1964. The members elected to represent each of the three (3) road districts shall serve for a term of four (4) years, the two other members elected shall serve for a term of two (2) years at the end of which time another election shall be held at the same time as the election for members of the General Assembly to fill the vacancy of the two (2) members leaving office. Biennially thereafter the election of successors to the members whose terms expire that year shall be held at the same time as election for members of the General Assembly." In your letter you request the answer to the following questions:
"What body or group will set the date for the election for the Board of Education in Laurens County; and
"Does the County Board of Education have any authority in setting the dates for election of Board Members?"
It is my opinion that pursuant to the aforesaid Constitutional Amendment the date for the first election of the Board of Education of Laurens County is providedfor i.e., the same date as the election for members of the General Assembly from Laurens County, and thereafter, the successors will be elected on the same date as the election for members of the General Assembly. Accordingly, no person, group or county board of education has the authority to set any date for the election of the members of the Board of Education of Laurens County. The election should be held in the same manner as the election for the members of the General Assembly, pursuant to 34-1901, et seq., of Georgia Code Annotated.
In the event that any political party desires to nominate members for the Board of Education of Laurens County, the primary election should be held pursuant to Georgia Code Ann. 34-3201.
November 27, 1963
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
This will acknowledge receipt of your letter requesting my official opinion as to the authority of the State Department of Public Health to supervise the administration of a state plan for the construction of community mental health centers and mental retardation facilities.
By a joint resolution adopted by the House, concurred in by the Senate, and approved by the Governor March 8, 1945 (Georgia Laws 1945, pp. 1218-21), the Department of Public Health was desig-

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nated as the sole agency to become the channeling agent on behalf of the State of Georgia for such health funds as may be made available by the Federal Government.
Joint resolutions, when passed by both houses of the General Assembly and signed by the Governor, become the law of the State and remain such until and unless repealed. The resolution in question has not been repealed and, therefore, remains in full force and effect.
I call your attention to 88-121 and 88-126 of the Georgia Code Annotated, which provide as follows:
"88-121. . . . The State Board of Health is hereby designated as the State agency for and shall have the power to establish and administer a program for services for the purpose of promoting the health of mothers and children; . . . to cooperate with the Federal Government through its appropriate agency or instrumentality in developing, extending and improving such services; and receive and expend all funds made available to the department by the Federal Government, the State or its political subdivisions or from other sources . . . ."
"88-126. . .. The State Department of Public Health is hereby authorized: . . .
"(b) To receive and expend in accordance with such plans all funds made available to the department by the Federal Government, the State or its political subdivisions or from other sources for such purposes.
"(c) To cooperate with the Federal Government through its appropriate agency or instrumentality in developing, extending and improving such services and in the administration of such plans. . . ."
I am, therefore, of the opinion that it would be legal and proper for the Department of Public Health to be designated as a proper state agency for supervising the administration of the state plan for construction of community mental health centers and mental retardation facilities under the provisions of Public Laws 88-156 and 88-164.
November 27, 1963
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter with reference to the meaning of Georgia Code Ann. 56-1027.
By this letter, you have requested my answer by official opinion to two questions which I restate as follows:

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1. A stock insurance company, after having invested sums equivalent to the amount of its capital stock and required reserves in the securities required by law, desires to participate in a loan to a finance company secured by pledge of its consumer loans. The amount of the insurer's participation is less than five percent of its total assets. For the purpose of this question, we may assume that there are no other like investments and that the insurer's remaining investments are all expressly recognized as "eligible" under Chapter 56-10 of the Insurance Code. May this described investment be made under 56-1027 without first obtaining the Commissioner's consent?
2. Assuming that the answer to the first question is affirmative, then you have also asked whether or not the insurer is entitled to treat this investment as an admitted asset.
Section 56-1027 of the Annotated Code clearly recognizes two classes of valid investments. It declares that certain funds:
"may be invested . . . in . . . investments otherwise authorized . . and in such other investments as may be approved by the Commissioner ..."
After specifying these two classes of eligible investments, 56-1027 concludes with the following:
"provided, however, that approval of the Commissioner is not required except to the extent such investments constitute more than 5 (%) percent of the total assets of an insurer."
The section thus does not literally state that funds may be invested in any other investments which, although not approved by
the Commissioner, amount to 5 ( %) percent or less of the insured's
assets. If it is to be given this meaning, it must be because the proviso, by eliminating the requirements of consent, recognizes, by inference and implication, a third class of eligible investments.
One of the familiar rules for construing statutes is that exceptions and provisos which constitute exceptions to the general rule are to be strictly construed. Sutton v. United States, 157 F. 2d 661, (5th Cir. 1946); Hiatt v. Brown, 175 F. 2d 273, 276 (5th Cir. 1949); Dalton Brick and Tile' Co. v. Huiet, 102 Ga. App. 221, 224 (1960). This rule of strict construction is especially applicable where the general rule is adopted for the protection of the public and the proviso makes an exception to that rule. It is abundantly clear that Chapter 56-10 regulates investments for the purpose of protecting the insurance-buying public. The regulation of eligible investments is clearly in the public interest and an exception to the rule should, in consequence, be strictly construed. The Annual Report of the Insurance Commissioner for the year ending December 31, 1961, shows that assets of Georgia-domiciled life insurance companies ranged from a low of $467,000 to a high of $225 million. Consequently, we are concerned in this problem with the right to make investments of sums between a low of $23,000 and a high of $11,250,000. The

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exception, therefore, cannot be justified upon the theory that the amounts involved are de minimis or two small to warrant consideration by the Commissioner. An insurer who claims, under the proviso, the right to invest large sums in which the public is vitally interested, virtually without restriction, should be able to demonstrate how that permission is clearly granted.
On the other hand, a strict construction and a conclusion that the statute recognizes only investments which are expressly authorized by Chapter 56-10 and the investments which the Commissioner has approved, would disregard and render meaningless the language of the "provided clause." An equally cogent rule of construction is that a statute must be so construed as to give full force and affect to all of its provisions if possible. Accident and Cas. Ins. Co. v. Cook, 72 Ga. App. 241, 246 (1945) (cert. denied); Mitchell v. Union Bag and Paper Co., 75 Ga. App. 15, 17 (1947); State v. Cherokee Brick and Tile Co., 89 Ga. App. 235, 239 (1953) (cert. denied); and Williams v. General Fin. Corp., 98 Ga. App. 31, 35 (1958).
The General Assembly should not be deemed to have used words in this statute with no meaning and with no purpose. In construing a statute, we must, of course, seek the intent of the Legislature and this intent is to be gathered from the statute as a whole, giving effect to all of its parts. State v. Cherokee Brick and Tile Co., supra. It has been said that a Court, in seeking the meaning of a statute, should not so interpret it as to make parts of its surplusage unless no other construction is reasonably possible. Brantley v. Augusta Ice and Coal Co., 52 F. Supp. 158, 160 (S.D. Ga. 1943).
The history of this section in the present Insurance Code throws light upon its meaning. The preliminary draft of October, 1958, which was prepared by the consulting attorneys from the Law Faculties of the University of Georgia, Emory University, and Mercer University contains the following as a proposed 56-1027:
56-1027. Special consent investments.-With the prior written approval of the Commissioner as to each such investment, an insurer may invest funds representing the excess of its assets over its reserves and paid-in capital stock or (if a mutual or reciprocal insurer) surplus required to be maintained for authority to transact insurance, in other securities or in any manner without limitation.
The draftman's notes contain the following comment: "Comment -this may be compared with the present law:
56-225. Approval of Insurance Commissioner, when required for investment.-Investments in the classes of securities defined in the preceding section, except as to a building for home office purposes, may be made by insurance companies without the approval of the Insurance Commissioner, and all other investments of funds by insurance companies in classes of securities other than those specified in the preceding section shall be made only when the approval of the Insurance Commissioner shall have been obtained. (Acts 1929, p. 275.)"

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I point out that neither the old law as embodied in old Georgia Code Ann. 56-225 nor the first draft of the proposed change, contained anything like the present five percent exception. The preliminary draft of October, 1958, was considered in a series of public hearings and when the Code was introduced in the Legislature as House Bill 115, the language of this section had evolved into the present text. It seems to me that the "provided clause" must have been added as an afterthought and by way of amendment. The fact that the section represents in this manner the language of two or more draftsmen, undoubtedly explains the awkwardness of the language emphasized in the early portion of this opinion.
Based upon the history of this section and rule of construction that all provisions must be given a meaning if possible, it is my opinion that, when the conditions set out in 56-1027 have been met, an insurer may then invest five percent of its total assets in investments which are not specifically recognized as eligible investments and in investments which have not been approved by the Commissioner. For that reason, the first question posed in your letter is answered in the affirmative. That is to say, First of Georgia Insurance Company may participate in the described loan to Mannelly Finance Corporation where the amount of such participation together with other similar investments amounts to less than five percent of the insurer's total assets, without first obtaining the approval of the Insurance Commissioner.
This brings us to your second question, that is whether or not the insurer may carry this loan upon its statement as an admitted asset.
The term "admitted assets" is one which is in general use in the insurance industry, but it is not defined in our Insurance Code and in fact, the exact expression appears to be used only in 56-1005. Chapter 56-9 deals with assets and liabilities, 56-901 defines assets by a very comprehensive definition and the first clause in that section declares that "... in determining the financial condition of an insurer, there shall be allowed as assets only such assets as are owned by the insurer . . ." and consist of those things thereafter described. Section 56-903 deals with "assets not allowed." "Admitted assets" is just another expression having the same meaning as "allowed assets" and both "admitted assets" and "allowed assets" mean those investments which come within the definition of 56-901 and are not excluded therefrom either impliedly by the language of 56-901 or expressly by 56-903.
Section 56-901 (2) in its pertinent part declares that "investments, securities, properties and loans acquired or held in accordance with this title ..."shall be allowed as assets. The question you have asked me, therefore, comes down to a decision as to whether or not investments made under 56-1027 in securities which are neither expressly approved by Chapter 56-10 nor approved by special consent of the Commissioner, but which are permitted because they are not more than five percent of total assets, are investments acquired or held in accordance with this title as provided in 56-901 (2). It

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is my opinion that the answer to this question is also "yes." Investments made under the "provided clause" of 56-1027 in consequence are admitted assets or allowed assets.
November 27, 1963
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
Your letter addressed to Governor Carl Sanders inquiring as to whether it is legally possible for the State Board of Health to employ a full-time secretary, responsible only to the State Board of Health and serving at the pleasure of the Board, has been referred to me for reply.
The Georgia Code Ann. 88-105, provides that the State Board of Health shall elect a director of the Department of Public Health, who shall devote his entire time to the work of the department, and who (in accordance with the provisions of 88-107), under the supervision of the State Board of Health, may exercise in his capacity any of the powers and authority, and perform any of the duties, functions and responsibilities therein vested in the State Board of Health, and may delegate the same or any part thereof to one or more individuals as he may deem appropriate in the circumstances.
Georgia Code Ann. 88-111, provides:
"Clerks and assistants in department.-Under the direction and supervision of said Board of Health the Director of the department may employ such clerks and assistants as may be provided for in an appropriation made for the support of said department."
Section 88-106, Georgia Code Annotated, provides:
"Secretary of board; compensation; duties.-The Board of Health shall elect a secretary, not a member thereof, from the clerical staff of the Department of Public Health, who shall serve without additional compensation for his duties as secretary, and who shall keep accurate minutes of each meeting of said board, submitting such minutes to the chairman of the board for his approval within 10 days after adjournment of such meeting."
Under the provisions of law applicable to the Board of Health and the Department of Public Health of the State of Georgia, the Director is the chief executive officer of the department, working under the direction and supervision of the Board of Health with power and authority to perform any of the duties, functions and responsibilities vested in the State Board of Health, and with the power to delegate the same or any part thereof to one or more individuals as the Director may deem appropriate.

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The Director is given the specific authority under the direction and supervision of the Board to employ clerks and assistants as may be provided for by appropriation, and in this connection, it is my opinion that the Director could employ a full-time secretary, who would be under the State Merit System.
It is my opinion that the State Board of Health could not circumvent the provisions of Code 88-106 providing for a secretary of the Board, and employ a full-time secretary, responsible only to the State Board of Health and serving at the pleasure of the Board. Except as provided by statute in the case of the secretary of the Board, the Director of the Department of Public Health is charged with the responsibility of employing clerks and assistants, who shall, in accordance with provisions of law, be under the State Merit System of Personnel Administration. The present statutory organization and administration of the Health Department would be inconsistent with any proposal permitting the State Board of Health to employ a full-time secretary responsible only to the State Board and serving at the pleasure of the Board.
December 2, 1963
SOLICITORS GENERAL
This is to acknowledge receipt of your letter in which you ask my unofficial opinion as to whether or not one county of a circuit can legally place a solicitor, who is presently on the fee system, on salary.
Under the provisions of Georgia Code Ann. 2-4702, the General Assembly has the power to abolish the fees accruing to the office of solicitor general in any judicial circuit, and in lieu thereof prescribe a salary for such office. This section further provides that the General Assembly shall have the power to determine what disposition shall be made of the fines, forfeitures and fees accruing to the office of solicitor general in any such judicial circuit where the fees are abolished.
It is, therefore, my unofficial opinion that one county of a judicial circuit cannot legally place a solicitor general who is presently on the fee system on salary.
December 10, 1963
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on the legality of using prison labor to grade land belonging to Schley County Industrial Corporation, a corporation formed to promote the development of industry in the county and whose stock is owned by both private individuals and Schley County.

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This problem appears to be controlled by Georgia Code Ann. 77-318 (Georgia Laws 1956, pp. 161, 177) which provides as follows:
"(a) The State Board of Corrections shall provide rules and regulations governing the hiring out of prisoners by any penal institution under its authority to municipalities, cities, the State Highway Department, or any other political subdivision, public authority, public corporation, or agency of State or local government, which are hereby authorized to contract for and receive said prisoners, but such prisoners shall not be hired out to private persons or corporations, nor shall any instrumentality of government hereinbefore authorized to utilize prison labor use such labor in a business conducted for profit." (Emphasis added)
Although it is quite evidence that this corporation is imbrued with a community purpose and no profit is contemplated by the stockholders, it is nevertheless clearly within the prohibited category of "private persons or corporation."
I am, therefore, of the opinion that this proposed use of prison labor is not permitted under Georgia Law.
December 12, 1963
OPINION TO THE BOARD OF PARDONS AND PAROLES
This will acknowledge receipt of your letter requesting my opinion in the legality of destroying misdemeanor files which are presently kept by the Board and which are of no value. Specifically, you ask whether misdemeanant files over five years old may be destroyed; and secondly, if they may not be destroyed, may they be stored in some place and in some custody other than the Board's.
Under the Georgia law, it appears that such records may not be destroyed and also may not be placed in custody other than the Board's.
Georgia Code Ann. 77-512 provides in part:
"Obtaining Information Respecting Persons Subject to Relief By Board; Records-It shall be the duty of the Board to obtain and place in its pe.rmanent records as complete information as may be practically available on every person who may become subject to any relief which may be within the power of the Board to grant...." Georgia Laws 1943, pp. 185, 188. (Emphasis added)
A misdemeanant may become subject to parole upon application. Therefore, under the above statute, the Board must maintain all information gathered on such an individual in its "permanent" records.

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Under the above ruling, it becomes necessary to answer the second part of your request concerning the placing of these records in some custody other than that of the State Board of Pardons and Paroles.
Two sections of the Georgia Code indicate that files on prisoners must be kept under the custody and control of the Board. The first is Georgia Code Ann. 77-533(a):
"Secrecy of Information; Public Hearing-(a) All information both oral and written received by the State Board of Pardons and Paroles in the performance of their duties under this Chapter and all records, papers and documents coming into their possession by reason of the performance of their duties under this Chapter shall be classified as confidential State secrets until declassified by a resolution of the board passed at a duly constituted session of the board...." Georgia Laws 1953, pp. 210, 211.
The second applicable section is Georgia Code Ann. 77-540:
"[P] rovided, said records shall be confidential and shall not be disclosed except to the above named persons and except as provided now by an Act of the General Assembly providing for the disclosure of the records of the State Board of Pardons and Paroles in certain instances." Georgia Laws 1956, pp. 580, 583.
It is evident from the above sections that the files in question should be kept confidential and it is inconsistent with privacy to place the files under the custody of some person or persons other than the Board as the Board alone is entrusted with the safekeeping of these files.
Therefore, I am of the opinion that in the absence of modifying legislation, misdemeanant files must be permanently maintained by the Board and under their custody.
December 12, 1963
OPINION TO THE DEPARTMENT OF INDUSTRY & TRADE
This will acknowledge receipt of your letter requesting my opinion on "whether a company manufacturing payout or gambling equipment may locate in this State under the existing laws."
Although Chapter 26-64 of the Georgia Code Annotated entitled "Gaming Houses, Gambling Tables, and Gambling" deals only with the act of gambling and therefore does not prohibit the manufacture of the devices used in gambling, it appears that the manufacture of these devices would be prohibited under Chapter 26-65 entitled "Lotteries, Gift Enterprises, and Trading Stamps."

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In that connection 26-6507 provides as follows:
"Lottery and Gambling Devices Declared Contraband-All vehicles and conveyances of every kind operated to transport or convey in any manner any lottery ticket, lottery book, lottery ribbon or any article or thing used in keeping, maintaining, or in carrying on any lottery or other scheme or device for hazarding money or thing of value, are hereby declared to be contraband and the said use of any vehicle or conveyance for said purpose is hereby prohibited. (Acts 1945, pp. 351.)" (Emphasis added)
If gambling devices are contraband when transported, it follows logically that they may not be manufactured.
Although further compelling arguments could be made and citations of authority given to support the above view, this one Code section would seem to be sufficient.
Therefore, I am of the opinion that companies manufacturing gambling devices may not be established in the State of Georgia.
December 12, 1963
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter concerning participation of juvenile and superior court judges on an advisory council to the Division for Children and Youth of the Department of Family and Children Services.
You have requested the following opinions:
First: Whether it is legal for such judges to serve on the proposed advisory council (especially in light of possible conflict with the "State Honesty Law"), and
Second: Whether it would be legal for the State Department of Family and Children Services to reimburse the judges for their outof-pocket expenses incurred in connection with travel to Atlanta for meetings.
It is my understanding that the Judges Advisory Council would be strictly "advisory" and would possess no power or authority of its own in connection with the operations, functions and decisionmaking activities of the State Department of Family and Children Services. In other words, there would be no delegation of any power or authority by your Department to the advisory council whatsoever, and the council's activities would be limited to expressions of opinion, making recommendations, and furnishing ideas to your Department. Your Department, as I understand it, would be completely free to adopt, reject or ignore the opinions, recommendations and ideas of the advisory council. Based upon this understanding of the purely

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"advisory" capacity of the proposed Judges Advisory Council my conclusions and the reasons therefor are as follows:
CONCLUSIONS
(1) In my opm10n it would be legal for judges of juvenile and superior courts to serve, without compensation, on the proposed advisory council.
(2) In my opinion it would be legal for the Department of Family and Children Services to reimburse the judges for such out-of-pocket expenses as they might incur in connection with travel to Atlanta for meetings.
DISCUSSION
Consideration of the "legality" of juvenile and superior court judges' serving without compensation on a proposed "Judges Advisory Council" to the Department of Family and Children Services (hereafter called "the Department"), an agency of the executive branch of the State government, would seem to require answer to two distinct legal questions. The first, as always in such cases, is the question of whether the Department, in taking the action under consideration, i.e., the creation of an "advisory council," is exercising a power which has been validly conferred upon it by the Legislature. Assuming an affirmative answer to this question, we have in the instant proposed action a second question arising from the membership of the proposed advisory council to the executive agency being composed of officers of another branch of government, to wit: the judicial branch. More specifically, the question here is whether the composition of the advisory council as proposed would run afoul the constitutional and statutory provisions requiring separation of legislative, judicial and executive powers.
The first question may be summarily disposed of under the well settled rule that public officers may exercise all those powers incidental to their express statutory duties or which may reasonably be implied therefrom. See, e.g., Taylor v. State, 44 Ga. App. 387, 395 (1931) (cert. denied); see also 43 AM. JUR. Public Officers 250 (1942); 73 C.J.S. Public Administrative Bodies and Procedure 50 (1951). The stated primary purpose of the Department in creating the contemplated advisory council is "to improve working relationships between the courts and the county departments at the local level and between the courts and the training schools which we operate" and quite clearly falls within the duties and responsibilities placed upon the Department by the Legislature. See, e.g., Georgia Code Ann. 99-111, 99-114, 99-128, 99-209 to 99-213. In addition, the Director of the Department is expressly given the right to "employ"1 personnel "to assist him in the performance of his duties,"
1. The term "employ" or "employment" as used in this and other provisions of Title 99 of the Georgia Code would presumably be interpreted by the court as having their usual and customary meaning of hire "for pay or compensation." See Black, Law Dictionary 617-18 4th ed.

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Georgia Code Ann. 99-107, and it would therefore be illogical to .suppose that the Director did not impliedly possess the lesser power of utilizing such "uncompensated" assistance as he might be able to secure from individuals willing to so aid him in the performance of his duties.
The second question, dealing with the advisory council to an executive department to be composed of members of the judicial department, and the possible conflict with constitutional and statutory provisions relating to separation of powers is somewhat more difficult. Article I, Section I, Paragraph XXIII of the Georgia Constitution (Georgia Code Ann. 2-123) provides:
"The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided."
And in 1959 the Georgia Legislature, in order that this constitutional provision "be more adequately enforced," enacted legislation providing in part:
"It shall be unlawful for ... (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 State of Georgia, or any agency thereof...." Georgia Laws 1959, pp. 34, 37; Georgia Code Ann. 26-5009.
The same statute further provides that any person who knowingly disburses or receives any compensation or money in violation of this section shall be guilty of a misdemeanor.
The statute, which became effective as of January 1, 1961, does not yet appear to have been construed in any reported decision. In considering how the courts would be likely to interpret the same with respect to the situation at hand it is therefore necessary to rely on the settled rules of statutory construction. There is no doubt but that the primary rule in this respect is one of determining the intent of the Legislature (see Georgia Code Ann. 102-102(9)) and here we are assisted by the express wording of the section that it enacted "to the end that the mandate of the Constitution contained in Article I, Section I, Paragraph XXIII . . . be more adequately enforced."
Of utmost significance is the fact that both the statute, Georgia Code Ann. 26-5009, and the constitutional provision to which it relates, Georgia Code Ann. 2-123, are concerned with the separation of "powers" of the legislative, judicial and executive branches of government. It manifestly does not, nor could it without doing violence to even more basic constitutional rights, e.g., freedom of speech, prohibit the mere expression of opinion by officials of one branch of government as to the desired course of action of another branch. Executive officers, for example, are obviously not prohibited from "recommending legislation to the Legislature so long as the actual power to enact the proposed bill into law is retained by the Legislature." Similarly the right of a legislative body to actively

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solicit such recommendations from another branch of government, so long as its power to legislate is not infringed upon, is too well settled to require further comment.
Because it is the exercise of power and not the exchange of ideas or mere recommendations that the foregoing code provision and statute are concerned with, it would seem clear that the uncompensated services of judges on the particular advisory council to the Department here contemplated would violate neither the Constitution nor the statutes. The Judges Advisory Council, so long as it exercises no executive power and merely furnishes recommendations, opinions and ideas to the Department would not be infringing upon the powers of the executive, which under the proposed use of such council are retained by the Department in toto. It is no doubt true that the statute is somewhat broader than the constitutional provision in that it expressly prohibits judges of courts of record from holding "office" or "employment" in the executive branch. But the judges serving without compensation on the advisory council would be unlikely to be held by the courts to be holding "office" in the executive department because of the fact that "office," at least when used in connection with "public office," connotes the possession of duties and powers, see Black, Law Dictionary 1234, 4th ed. and such duties and powers are, as pointed out above, clearly lacking in the proposed advisory council. Nor could the judges be deemed to be acting as "employees" of the Department in view of the fact that the term "employing" or "employment," as pointed out in a previous footnote to this opinion, means hire for pay or compensation. In conclusion, it would seem that the uncompensated services of juvenile and superior court judges on the proposed advisory council to the Department would meet the letter as well as the spirit of both statutory and constitutional provisions relating to separation of powers.
The second opinion requested concerns the legality of reimbursement of the judges serving on the advisory council for out-of-pocket expenses incurred in trips to Atlanta for meetings. This problem becomes acute in light of the fact that should such reimbursement be considered as compensation for services on the council the judges might be deemed to be holding employment in the Department and thus cause the council's activities to violate the express language of Georgia Code Ann. 26-5009, even though probably not violative of the constitutional clause it is designed to enforce. Legality of such reimbursement, of course, also raises the question of the power of the Department to expend funds in this manner.
Although such reimbursement is undoubtedly "compensation" in the broad sense, it is believed that such disbursement to the members of the advisory council, if strictly limited to actual expenses incurred rather than compensation for the services rendered or time spent as advisors, would not cause such judges to be in the "employment" of the Department, would not violate the statutory limitations on compensation for judges as set forth in Georgia Code Ann 24-2606 to 24-2606.2, and would not constitute an illegal disbursement by the Department.

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It is stated in 67 CJ.S. Offices 95 (1951) :
"A mileage or traveling transfer allowance which is not intended for the personal benefit of the officer or as remuneration for services or time, but rather to cover actual and necessary expenditures on official business, is not compensation within the meaning of a constitutional prohibition against a reduction in compensation during the term of office, and hence may be reduced during the officer's term."
Although the legal problem dealt with by the above quotation is not the same as that here presented, I believe that the distinction between compensation for out-of-pocket travel expenses and compensation for services rendered and time spent in an advisory capacity would also be valid here and preclude a judicial holding that by acceptance of such reimbursement the judges serving on the council would be deemed to be in the "employment" of the Department.
The limitation on compensation for judges set forth in Code 24-2606 to 24-2606.2 although expressly limiting the compensation and allowances to judges "from state funds," obviously refers to compensation of judges "as judges," (i. e., for their judicial functions). It would scarcely be maintainable that a judge owning State bonds could not receive interest from the State Treasury or that if called merely in his capacity as an ordinary citizen to be a witness in a legal proceeding, he would not be entitled to witness fees. It follows that where as here he is serving on an advisory council, not in his capacity as a judge, but merely as an ordinary citizen (although perhaps with extraordinary knowledge in the area of the council's deliberations), there is no violation of the foregoing limitations on a judge's salary and allowances by his receipt of travel expenses from a state agency otherwise entitled to disburse such moneys.
Lastly, there is the question of the authority of the Department to pay the out-of-pocket travel expenses of the members of the advisory council. Although no Georgia decisions in point have been located it has been noted in other jurisdictions that the power to disburse funds, like any other power, may exist by implication as well as by express grant. See Woodruff v. Beeland, 220 Ala. 652, 127 So. 235 (1930). The power of disbursement expressly given to the Department is contained in two statutes, both of which would clearly seem to apply to payment of the travel expenses under consideration. Georgia Code Ann 93-132 provides that all funds appropriated or allocated to the Department are funds for public purposes and may be expended and distributed for the "purposes provided for under the terms of this law." Similarly, Georgia Code Ann. 99-103 provides that the Department is empowered and authorized:
"To administer, expend, and disburse funds appropriated to it . . . through its appropriate agencies and instrumentalities for the purpose of distributing old-age assistance and all other benefits provided for in this law." (Emphasis added)

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Inasmuch as the creation of the Judges Advisory Council, as pointed out earlier in this opinion, is clearly within the scope of the Department's powers, it follows that the payment of the out-ofpocket travel expenses to enable the council to function efficiently and thus assist in the accomplishment of the Department's express statutory duties as set forth in Georgia Code Ann. 99-111, 99-114, 99-128 and 99,209 to 99-213, must also be an implied power, such disbursement being incidental to and reasonably necessary to the accomplishment of the Department's purpose, duties and responsibilities.
December 13, 1963
OPINION TO THE HIGHWAY DEPARTMENT
I am pleased to acknowledge and reply to your letter wherein you request my official opinion concerning the following question:
"Can the Director of the State Highway Department of Georgia make a compromise settlement with a third party tort-feasor of his contingent liability to the State Highway Department arising under Code Section 114-403, as amended?"
You state in your letter that: "Under the provisions of the Workmen's Compensation Act as amended this year, the State Highway Department of Georgia is subrogated to the extent of its liability to any amounts received by our employees either as a settlement or in payment of a judgment where the injury to our employee is caused by the negligence of a third party tort-feasor. Since our subrogation rights are based upon a contingent action, the liability of a third party, we have been faced with the question of settling with the third party or his insurer our subrogation claim."
By Act of the General Assembly of 1943, the various departments of the State were made subject to the provisions of the Workmen's Compensation Law. (Georgia Laws 1943, pp. 401, 402). This, of course, included 114-403 of the Georgia Code Annotated, which section was recently amended by the 1963 General Assembly (Georgia Laws 1963, pp. 141, 145), and provides as follows:
"114-403. Subrogation.-Whenever any person is called upon to pay compensation, medical expenses and/or funeral expenses on account of injury or death compensable under this Act, and such person contends that a person or persons other than the employer is liable to pay damages, on account of such injury or death, to the injured employee or those entitled to recover for the employee's death, such person called upon to make such payment may give to the persons contended to be so liable and to the injured employee or those entitled to recover on account of his death written notice of such contention and of the fact that the person giving notice is required to make such payment. Upon giving such written notice, the per-

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son called upon to make such payment shall be subrogated, to the extent of the compensation medical expenses and/or funeral expenses payable, to all rights arising out of the injury or death which the injured employee or those entitled to recover on account of his death shall have against such notified persons, and shall have a lien therefor against the net recovery of any judgment or settlement recovered by the injured employee or those entitled to recover on account of the employee's death against any of the person so entitled."
Prior to the 1963 Amendment to the Workmen's Compensation Act, neither the employer nor his insurance carrier had any right to interfere with voluntary settlements between an employee and a third party tort-feasor. United States Casualty Co. v. Watkins, 211 Ga. 619 (1955). However, under the 1963 Amendment to 114-403 of the Workmen's Compensation Act, supra, the right of an employer who has paid compensation to an employee under this Act to recover indemnity from a tort-feasor who has injured such employee is the same right (to the extent of the compensation, medical expenses and/or funeral expenses) and no more, as employee has to recover from such tort-feasor.
I should like to call your attention to 2 of the 1963 Amendment (Georgia Laws 1963, pp. 141, 142) which, by virtue of the 1943 Law, supra, is also applicable to the various State Departments. This section to which I have reference provides as follows:
"114-106. Settlements encouraged.-Nothing herein contained shall be construed so as to prevent settlements made by and between the employee and employer, but rather to encourage them, so long as the amount of compensation and the time and manner of payment are in accordance with the provisions of this Title...."
The General law seems to be that a State may, through its Legislature, provide for the compromise and adjustment of claims, 81 C.J.S. States 211 (1953).
The Georgia General Assembly has enacted such legislation (insofar as the Highway Department is concerned), authorizing settlement of claims. Section 95-1505 of the Georgia Code Annotated, provides:
"Suits by or against Highway Department.-The Highway Department may sue and be sued and may make settlement of all claims presented to it under oath. (Acts 1919, p. 252; 1925, pp. 208, 211.)"
Moreover, 114-106 and 114-403 of the Workmen's Compensation Act grant implied authority to the various departments to compromise a Workmen's Compensation Claim against a third party tort-feasor under circumstances where the Department has been subrogated to the rights of an employee.
Your further attention is called to my official opinion (to which I still adhere) rendered to Honorable Carl E. Sanders, Governor, on

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May 15, 1963, wherein the Governor requested me to interpret and construe the Act reorganizing the State Highway Board, approved January 25, 1963 (Georgia Laws 1963, p. 3) with respect to the power and authority conferred upon the State Highway Board and upon the Director of the State Highway Department by the various provisions of the Act. In that opinion I stated that:
"The Board is now solely a policy-making body, presided over by the Chairman. On the other hand, the details of dayto-day administration, such as the employment and discharge of personnel, the control of funds, advertisement of bids, and all other similar duties administrative in nature, are to be exercised by the Director."
I conclude that, by virtue of the authorities herein cited, you, as Director of the State Highway Department, may make a compromise settlement with a third party tortfeasor of his contingent liability to the State Highway Department, arising under 114-403, as amended, provided that the settlement agreement is presented to you under oath ( 95-1505, supra.), verifying the facts contained therein, and provided further that you issue an order with verified claim attached declaring that such settlement is, in your opinion, fair, reasonable and just, and to the best interest of the State Highway Department. As a matter in good practice, I suggest that the order be approved as to form and legal content, either by myself or the Special Attorney assigned by me to represent the State Highway Department.
December 16, 1963
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein your request an opmwn as to the propriety of the State Department of Family and Children Services' (hereafter referred to as the "Department") furnishing 100% of the administrative expenses of categorical assistance programs under Title 99 of the Georgia Code as an incentive to (and where groups of counties agree to) merge such services across county lines.
In particular you desire to know whether the Department is authorized by Georgia Laws 1963, pp. 354, 355 (Georgia Code Ann. 23-2901 to 23-2904) to assume 100% of the administrative expenses of the such programs as an incentive to the merger of such services across county lines notwithstanding the fact that the prior statutes providing for such welfare services expressly provide that 5% of such administrative costs are to be borne by the counties. See Georgia Code Ann. 99-622 (Old Age Assistance Act) ; 99-728 (Aid to the Blind Act); 99-920 (Aid to Dependent Children Act) ; 99-2014 (Aid to Disabled Act).
It is my opinion that your Department, as an incentive to the merger of such welfare services across county lines, is authorized

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by 23-2901 to assume a percentage of the administrative costs of such "merged" welfare services higher than the 95% previously authorized, including, where funds are available, the assumption of 100% of such costs. My reasons for this opinion are as follows:
The preamble to the statute found in Georgia Laws 1963, pp. 354, 355, as well as the Act itself (codified as Georgia Code Ann. 23-2901 to 23-2904) makes it abundantly clear that the intention of the Georgia Legislature is to encourage the merger of such welfare services across county lines, and as an incentive to such merger, to authorize an increase in the percentage of the fiscal burden of such services borne by the State. By its express wording the Act authorizes and empowers the State and "all department" to furnish "assistance, funds, property and other incentives" to any two or more counties willing to provide for the "consolidation, combining, merger or joint administration" of "any program of services, benefits, administration or other undertaking" in which the State or department participates with such counties. The code section further provides:
"The incentive hereinbefore referred to shall also include the assuming by the State or its agencies of a greater share, or where funds are available and such is deemed feasible, the entire cost of such participating program."
Inasmuch as the categorical assistance programs you refer to are manifestly programs of "services, benefits, administration or other undertaking" in which the State (i.e. the Department) and counties participate, there can be no doubt as to the general applicability of Georgia Code Ann. 23-2901 to 23-2904 to the same. As to the resulting conflict between these sections and the provisions of the previously mentioned clauses of the assistance acts limiting the State's (i.e. Department's) participation to 95% of the administrative costs, suffice it to note the axiomatic rule that where statutory provisions or clauses are in irreconcilable conflict and cannot be harmonized, the latter, being the most recent expression of the Legislature, controls. See, e.g. Martin v. State, 75 Ga. App. 807 (1947) (cert. denied); Adcock v. State, 60 Ga. App. 207, 208-09 (1939).
December 17, 1963
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
You asked that I review certain material pertaining to the Chatham-Savannah Defense Council to determine whether it is a separate political subdivision for social security purposes.
You included for inspection and review several documents furnished by the Council: a resolution of the Mayor and Aldermen of the City of Savannah, dated June 16, 1950, approving a Civil Defense Director and directing coordination of efforts with the County officials; a resolution of July 28, 1950, allocating monies to the Civilian Defense Committee; minutes of meetings of the Chatham-Savannah

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Defense Council; By-laws of the Council; a resolution of the County Commissioners approving adoption of the organization of the Chatham-Savannah Defense Council pursuant to the Georgia Civil Defense Act; a resolution by the Mayor and Aldermen setting up the same (which was approved and adopted by the County Commissioners) ; and in addition, an opinion of Honorable John W. Sognier, Chatham County Attorney which holds the Council was organized in 1950 and is an instrumentality of the City and County governments.
Georgia Laws 1953, Nov.-Dec. Sess. p. 294 is the latest Act under which social security was made available to governmental employees. It seeks to cover "any service performed by an employee in the employ of any political subdivision. . . ." Section 2, Definitions, in paragraph (f) then defines "political subdivision" as:
"The term 'political subdivision' within the terms of this Act, means counties and incorporated towns and cities and includes an instrumentality of (A) the State, (B) one or more political subdivision of the State, ..." [Emphasis added]
It is my interpretation that the term "political subdivision" would thus include instrumentalities of a county or city, or of both.
From the documents furnished, I feel the Chatham-Savannah Defense Council was created as an instrumentality of the City and County acting jointly in 1950, and as such would be within the definition of a "political subdivision" for social security purposes. It later acquired a more formal and independent existence by virtue of the 1961 actions of the City of Savannah and Chatham County acting under the Civil Defense Act of 1951, but this was unnecessary in so far as the social security question is concerned. I am of the opinion it may contract for social security and that you may proceed to modify your Federal-State Agreement and take whatever other steps are necessary to afford coverage to its employees.
December 23, 1963
JUSTICES OF THE PEACE
This is to acknowledge receipt of your letter in which you state that you have been advised that as a Justice of the Peace you are not authorized to perform marriage ceremonies outside of your District. You ask my advice in this matter.
For your information I am enclosing herewith a copy of Georgia Code Ann. 53-201 which deals with the subject about which you make inquiry. You will note that this section provides that the license shall be directed to any Judge or Justice of the Peace or minister of the Gospel authorizing the marriage of the persons therein named, and requires such Judge, Justice of the Peace or minister of the Gospel to return the said license to the Ordinary with the certificate thereon as to the fact and date of the marriage. This section does not provide that the license shall be issued and directed only to the Justice

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in the county or district. It would seem from reading this section that a Justice of the Peace would be authorized to perform a marriage ceremony at any place that a minister or judge might perform such ceremony.
December 24, 1963
GUARDIANS
You asked me to advise you of the procedure to appoint a guardian for a person hospitalized in Milledgeville State Hospital under the provisions of the 1960 "Mental Health Law."
I have given careful consideration to the provisions of the Mental Health Act (Georgia Laws 1960, pp. 837-856) and find nothing in the caption or body of this Act having to do with the appointment of guardians of mentally ill persons, except the provision found in 24 which expressly retains Georgia Code Title 49. This section of the 1960 Act read as follows:
"Section 24. Georgia Code Title 49 expressly retained. Title 49 of the Code of Georgia, as amended, relating to guardians and wards, the powers, duties, and liabilities of guardians, settlement, resignation, and letters dismissing, foreign guardians, county guardians, guardians of insane or deaf and dumb persons and persons non compos mentis, ordinaries as custodians of minors' or insane persons' moneys, and guardians of incompetent world war veterans is hereby expressly retained and shall not be construed as being repealed by the provisions of this Act."
Therefore, Chapter 49-6 of the Code continues to be the law dealing with the procedure of appointment of guardians for insane persons and persons non compos mentis. The question then arising is, "Does the ordinary have authority under Georgia Code Ann. 49-604 or 49-614 to appoint a guardian for a person who is actually in Milledgeville State Hospital under the provisions of the 1960 Act?"
The answer to this question is that the ordinary must carefully follow the provisions of the law as codified unofficially in 49-604 and 49-614 of the Georgia Code Annotated. Those sections provide:
"49-604. 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, and affidavit is made by any one of such relatives or other person that such person is violently insane and is likely to do himself bodily injury, and where the truth of such affidavit has been verified in

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writing by a practicing physician appointed by the ordinary to examine such person, 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. Such commission shall be sworn by any officer of this State, authorized by the laws of this State to administer an oath, well and truly to execute such commission to the best of their skill and ability, which oath shall be returned with their verdict. No guardian shall be appointed for the estate of such person, nor shall such person be committed to the Hospital without unanimous verdict of such commission. (Act 1834 Cobb, 343. Act 1838, Cobb 345. Acts 1855-6, p. 151; 1889, p. 70; 1897, p. 109; 1901, p. 38; 1915, p. 20; 1918, p. 162; 1931, p. 184.)"
"49-614. Ap,pointment of guardians without trial when in State HospHal.-The ordinaries of the several counties are hereby authorized to appoint guardians for insane persons without a trial, as provided for in 49-604, whenever it shall be made to appear to them that such insane person is in the Milledgeville State Hospital upon commitment thereto, as provided in 49-604, or when it shall be shown by the certificate of the superintendent of the Milledgeville State Hospital that such person is hopelessly insane and that it is necessary for such person to have a guardian to take charge of his property. (Acts 1884-5, p. 130; 1925, p. 270.)"
I call your specific attention to the last sentence in 49-604 which reads as follows:
"No guardian shall be appointed for the estate of such person, nor shall such person be committed to the Hospital without the unanimous verdict of such commission."
You will also note that 49-614 provides that the ordinary is authorized to appoint guardians for an insane person without a trial, as provided in 49-604, when it shall be made to appear to him that such insane person is in the Milledgeville State Hospital upon commitment thereto, or when it shall be shown by a certificate from the superintendent of the Milledgeville State Hospital that such per-

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son is hopelessly insane and that it is necessary for such person to have a guardian to take charge of his property.
The Supreme Court of Georgia held in Milam v. Terrell, 214 Ga. 199 (1958), that:
"The appointment of guardians for insane persons without a trial when in the state mental hospital shall be under the same rules and regulations as govern the appointment of minors. However, the appointment of guardians for persons of unsound mind who are incapable of managing their estates shall occur only after formal examination of such person as required by 49-604 of the Georgia Annotated Code." See Morton v. Sims, 64 Ga. 298 (1879); Singer v. Middleton, 135 Ga. 825 (1910).
For this type of examination inquiring into a person's capacity to manage his own estate, the jurisdiction of the ordinary is extremely limited, the proceedings are summary, must be strictly construed, and must show on their face such facts as the giving of required notice to the three nearest adult relatives, the issuance of the commission and the return thereof, as will authorize the judgment appointing the guardian.
ln support of this position, the Supreme Court in Templeman v. Jeffries, 172 Ga. 895 (1931), stated that:
"No guardian can be appointed for the estate of a person, nor can such person be committed to the sanitarium except upon the unanimous return of the members of the commission appointed in the manner thereby described in 49-604 of the Georgia Code." (Emphasis added)
Therefore, unless there is a duly constituted commission as required by 49-604 and the unanimous return of the members thereof as required, the ordinary will be without jurisdiction to act in this matter. As a result of this, the writ of prohibition would be to enjoin the ordinary from appointing a guardian for the person and property of the party for whom the guardianship was sought.
It was further stated in the Templeman case, supra, that "the return of a commission in a lunacy proceeding is not void for the reason that it does not specify the class of mental defectives in which falls the person for whom guardian or commitment to the sanitarium is sought."
The law requires only that the commission in its return specify whether such person shall have a guardian appointed for his person and property, or whether he should be committed to the hospital.
The Court of Appeals in Smith v. Merritt, 101 Ga. App. 209 (1960), held that where a person of unsound mind has been committed to the State Hospital in Milledgeville under the provisions of 49-604 the court of ordinary for the area in which such person lived at the time he was sent to the hospital has jurisdiction to appoint a guardian for such person, and no other court of ordinary

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has such jurisdiction. See Ocean Ace. & Guar. Co. v. Lovern, 90 Ga. App. 708, 711 (1954).
It is my opinion that this will equally apply to a commitment under the 1960 law.
You will also note that the provisions of 49-614, inter alia, allow the ordinary to appoint guardians for insane persons without a trial when it shall be shown by a certificate of the superintendent of the Milledgeville State Hospital that such person is hopelessly insane and that it is necessary for such person to have a guardian to take charge of his property. I do not find that a judicial determination has ever been made of a patient's status under this provision. It is certainly questionable whether an official of the hospital should be given such sweeping authority to determine the patient's legal status, particularly since many persons are entering the hospital to secure psychiatric help under the provisions of the 1960 Act.
It is my opinion that under the above-cited statutory provisions that the appointment of a guardian for a person committed under the 1960 law must be performed by the ordinary of the county where such person lived at the time he entered the hospital, and then only after formal examination of such person as required by 49-604 of the Georgia Code Annotated.
December 30, 1963
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge receipt of your letter requesting an official opinion with respect to the construction of Georgia Code Ann. 92A-608, related to the reinstatement of driver's license.
The pertinent part of 92A-608 states:
"The Director may, after the expiration of any revocation or suspension period by any court or upon receiving a letter of recommendation from the court as provided in 92A-427.1, reinstate the license of an operator whose license has been revoked under the above provisions only in the event said operator has qualified as required in this Chapter...."
The term "may" seems to be the key word and this term is generally construed in the sense of being permissive and not mandatory or directory.
It would appear that the requirements of this Code section set forth the limitations and conditions which must be met before the Director can legally reinstate a driver's license, but the meeting of these conditions does not thereby limit the discretionary character of the Director's action.
It is my opinion that under the word "the Director may reinstate," the Director does have the authority to hold such license for such

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period of time within the three year period of revocation as the Director deems necessary and that it is not necessary upon proof of financial responsibility for the future being shown to the Director that action be taken to reinstate driving privileges.
January 2, 1964
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter requesting my official opinion upon the following questions:
(1) May an insurer which has charter power to write title insurance, along with one or more other classes of insurance be licensed in Georgia to write such other class or classes of insurance so long as it is not licensed to write title insurance in Georgia?
(2) Should your answer to question number one be in the negative, then would a company licensed in Georgia to write fire insurance or some other class of insurance lose that right upon being authorized by the state of its domicile to write title insurance?
Section 56-304 of the Georgia Code Annotated provides:
"An insurer which otherwise qualifies therefor may be authorized to transact any one kind or combination of kinds of insurance as defined in Chapter 56-4 except:
"(1) A reciprocal insurer shall not transact life insurance.
"(2) A Lloyds insurer shall not transact life insurance.
"(3) A title insurer shall be a stock insurer and shall not be authorized to transact any other class of insurance, except that if immediately prior to the effective date of this Title any title insurer lawfully held a subsisting certificate of authority granting it the right to transact in Georgia additional classes of insurance other than title insurance, so long as the insurer is otherwise in compliance with this Title, the Commissioner shall continue to authorize such insurer to transact the same classes of insurance as those specified in such prior certificate of authority."
As you point out in your letter the crucial question is, what is meant by the term "title insurer?" The term is not specifically defined in our statutes, and there apparently are no Georgia cases clarifying it. It therefore is necessary to try to determine the intent of the Legislature in using the term.
Section 56-103 provides, in part:
"Insurer includes every person engaged as indemnitor, surety or contractor who issues contracts of insurance. . "
Section 56-109 provides:

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"No person shall act as an insurer as defined in 56-103 in this State without complying with the applicable provisions of this Title."
It therefore is my opinion that the language used in 56-304 with reference to title insurers was intended to mean only those insurers which had complied with the applicable provisions of the insurance laws including the procuring of a license to transact title insurance in this State. The language used in 56-109 tends to support this conclusion, since it obviously means that unless an insurer has complied with the laws herein referred to it will not be recognized as an insurer. It follows, then, that a title insurer, unless licensed in Georgia as a title insurer, would not be recognized as a title insurer in this State; whereas if it has complied with the laws including the procuring of a license (for example, to transact fire insurance), it would be recognized as a fire insurer even though it is licensed to write title insurance in the state of its domicile.
The answer therefore to your first question would be "yes," and, of course, the answer to your second question would be "no."
January 2, 1964
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter requesting my opmwn as to whether or not the ceiling on non-recording insurance premiums which may be passed on to the borrower is the recording fee made chargeable in 1955 when the Industrial Loan Act was passed, or the increased fee which will be collectible under the Uniform Commercial Code on and after January 1, 1964.
Georgia Code Annotated 25-316 provides in part that the holder of an industrial loan license may require the borrower to pay the recording fees "... or on loans over $100.00 the amount of the lawful premiums, no greater than such fees, actually paid for insurance against the risk of non-recording or releasing any instrument securing the loan...."
Your letter accurately states that at the time the Georgia Industrial Loan Act was passed in 1955, the clerk's fees for recording were controlled by Code 24-2727 and 24-2728 in which the fees allowed amounted to 20 per 100 words in counties having less than 65,000 population, and 15 per 100 words in all other counties, with a minimum fee of 50. The Uniform Commercial Code, which became effective January 1, 1964, provides in paragraph 5 of 109A-9-403 a uniform fee for filing, indexing and furnishing filing data, at $2.50.
I will not attempt to go into the matter of justifiable increased rates in the premiums for non-recording insurance since that is a matter regulated by your office, and I am sure you are aware that raising the legal recording fees does not, under the law, automatically

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raise the premium rates for non-recording insurance. It is my opinion that your office has the right to regulate and fix the proper rate whether it be higher or lower than the rates now being charged by non-recording insurers.
The only question I will attempt to answer is whether or not a premium rate for non-recording insurance greater than the lawful recording fees in 1955 may be passed on to a borrower under 25-316 of the Industrial Loan Act. The legislative intent should be determined, if possible, from the language employed in the Act itself. No specified amount in dollars and cents is set out as a limitation. Instead the words used are "... the actual lawful fees paid to a public official or agency of the State for filing, recording, or, on loans over $100.00 the amount of the lawful premium, no greater than such fees, actually paid for insurance against the risk of non-recording or releasing any instrument securing the loan." (Emphasis supplied) It therefore would seem that the intent was to require only that the premium actually be paid and that it be no greater than the lawful recording fees, and that there was no intent to restrict the amount of the premium to the lawful recording fees effective in 1955. To place such a meaning on the language used would be reading into the Act words which were not used and obviously not intended, since such a limitation or restriction could have been spelled out if it had been intended. It must be assumed that the Legislature possibly forsaw that there would be changes and variances in lawful recording fees and for this reason did not attempt to set any specified limitation in dollars and cents.
I might point out that there was a minor change in the recording fees in 1957 when Code 24-2728 was amended raising the fee from 20 to 25 per 100 words in counties having a population of less than 65,000. Apparently no issue was raised at that time as to whether this slight increase could be passed on to a borrower under the Industrial Loan Act.
My opinion, therefore, is that non-recording insurance premiums, subject otherwise to rate approvals and regulations by your office, would be lawful after January 1, 1964, provided they do not exceed the amount of the new recording fees set out in paragraph 5 of 109A-9-403 of the Uniform Commercial Code.
January 3, 1964
OPINION TO THE DEPARTMENT OF BANKING
You stated that the State Merit System has recently authorized an increase in the compensation of the Superintendent of Banks from computation on level 34 to level 36. You asked whether this increased compensation would apply to the Acting Superintendent of Banks.
Section 13-303 of the Georgia Code Annotated provides that in the event of a vacancy in the office of Superintendent of Banks when

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the Senate is not in session, the assistant superintendent shall act, holding the office until the Senate convenes. Further:
"When the assistant superintendent shall hold the office of Superintendent, as herein provided, he shall receive the same salary, ... as ... the Superintendent of Banks."
It is my opinion that the law contemplates the same compensation be awarded the assistant superintendent, when serving as Acting Superintendent, as would be paid a Superintendent. Thus the Acting Superintendent would be entitled to have his compensation computed under level 36 whenever the increase is effective, the same as would a regularly appointed Superintendent of Banks.
January 3, 1964
OPINION TO THE DEPARTMENT OF REVENUE
You requested my opinion on two points. The first question is which claim has first priority as to the property of a taxpayer-a State tax lien has first claim of a bona fide purchaser for value? The second concerns the liability of a purchaser of a business or stock of goods for any tax, interest or penalty levied against his vendor under the Georgia Sales and Use Tax Act (Georgia Code Annotated Chapter 92-34A).
The basic priority for the payment of taxes is found in Georgia Code Annotated 92-5707, which provides that, "Taxes shall be paid before any other debt, lien or claim whatsoever ..." (emphasis added). The general provisions establishing liens for taxes are Georgia Code Annotated 92-5708 and 92-8444. These provisions each provide, "liens for taxes . . . shall cover the property of taxpayers liable to tax from the time fixed by law for valuation of the same in each year until such taxes are paid, ..."
Under these provisions, 92-5707, 92-5708, and 92-8444, state tax liens arise by operation of law. Recording of a state tax lien (or fi. fa.) is not a condition precedent to the creation of the lien unless specifically made so by statute. State of Georgia v. Atlanta Provision Co., 90 Ga. App. 147 (1954). Where the statute creating the lien, or imposing the tax, specifically makes recording a condition to the creation of the lien it must be recorded to come into existence. This is the situation with liens for state income taxes. Georgia Code Ann. 92-3306.
Once a state tax lien comes into existence, it attaches to all the property of the delinquent taxpayer, including after-acquired property, and is superior to all other claims, judgments, mortgages, sales, transfers or incumbrances whatsoever unless such claim is clearly made superior to the tax lien by a specific statutory enactment. Carroll v. Richards, 50 Ga. App. 272 (1934); Verdery v. Dotterer, 69 Ga. 194 (1882); Doe ex dem, Gledney v. Deavors, 8 Ga. 479 (1850); Belser v. Puckett, 179 Ga. 249 (1934); Sumter County v. Hollis, 51

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Ga. App. 410 (1935); Georgia Code Ann. 92-5707, 92-5708, and 92-8444.
In 1953 the legislature amended Georgia Code Ann. 92-5707, 92-5708, and 92-8444 to provide that the holder of a security deed would take priority over state tax liens in certain situations.
The amendments to 92-5707 and 92-5708 dealt with ad valorem taxes and provided that the holder of a security deed would be superior to a lien for ad valorem taxes where the taxes were on property other than the property covered by the security deed. Recording is not mentioned in the amendments and it appears that such a security deed would take priority over the tax lien regardless of the recording or non-recording of either the tax lien or the security deed. Williams v. General Finance Corp., 98 Ga. App. 31 (1958).
The 1953 amendment to Georgia Code Ann. 92-8444 dealt with specific and occupational taxes. A security deed is made superior to the liens for such taxes only where it is recorded prior to the time the fi. fa. for such taxes is recorded. Williams v. General Finance Corp., supra.
In a situation where a security deed takes precedence over a tax lien, a bona fide purchaser who purchases at a foreclosure of such a deed would take precedence over a tax lien, not because he was a bona fide purchaser but because he derived his title from one who by statute is given priority over the tax lien. In Georgia Code Ann. 92-8444, tax liens for motor fuel taxes must be recorded to take priority over a bona fide purchaser. One other situation where recording is necessary to protect the lien against claims of bona fide purchasers is where the tax fi. fa. is sold to a third person. Sumter County v. Hollis, supra. Also, where a receivership is granted and a bar order entered, a bona fide purchaser gets a title free from a State tax lien. Jones v. Staton, 78 Ga. App. 890 (1949).
In all other situations a bona fide purchaser would not take priority over a State tax lien. State Revenue Commissioner v. Rich, 49 Ga. App. 271 (1934). Carroll v. Richards, supra. This is true even where the owner had failed to return the property for taxation. Doe ex dem, Gledney v. Deavors, supra.. For a bona fide purchaser to lose his priority in all cases other than the exceptions shown above seems unduly harsh. However, the Courts have met this argument and in the Gledney case the Court said, at page 484:
"To collect taxes, the State moves with uncontrollable power directly and instantaneously upon the property; and if, in the exercise of this stern but necessary attribute of sovereignty, the citizen is injured, his only redress is by petition to the Legislature."
Under the provisions found in the Sales and Use Tax Act, Georgia Code Ann. 92-3422a, providing for successor liability, there is no requirment that the successor continue to operate the business in order to be held liable. Therefore, one who purchases either a stock of goods or equipment from a going business does so at his peril unless and until he receives the certificate from the State Revenue Com-

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missioner reciting that the previous owner and operator had no outstanding sales tax liability. This is true even where the purchaser does not continue to operate the business as a going concern.
January 7, 1964
OPINION TO THE GOVERNOR
This is in reply to your recent letter in which you ask if the Judge of the Court of Ordinary of Upson County, Georgia, has the authority to change the name of the militia district in Upson County from "Union Hill" to "Yatesville."
Georgia Code Ann. 23-204, in part, clearly gives to the Ordinary, whenever it may be necessary, power to lay out a new militia district, to change the lines of old ones, to consolidate, and even abolish, old districts.
There are several pertinent Supreme Court cases, dating back to 1893. All of the cases then and since touch upon, although not directly, the authority, of the Ordinary to change and reorganize militia districts as provided by the present statutes. However, none of these cases attack or even directly discuss the authority of the Ordinary to abolish, change and reorganize old districts or to create new ones.
Therefore it must be stated that since the Ordinary has all of the above powers, which are quite extensive, then certainly he has the power as implied by law to merely change the name of a militia district without changing its boundaries.
January 9, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you request an opinion as to the effect on existing municipal and local ordinances licensing and regulating daycare centers for preschool children, of the "Children and Youth Act of 1963." (Georgia Code Ann. 99-201, et seq.), which for the first time provides a state-wide general law for the licensing and regulation of such day-care centers.
More specifically, you desire an opinion as to whether the licensing and regulatory provisions of the general act supersede existing local ordinances, rendering them null and void. Inasmuch as the new act expressly provides that the licensing provisions do not apply to any child welfare agencies operated by state, county or municipal government, I presume your concern is limited to the effect on privately owned and operated day-care centers and this opinion is, therefore, confined to the effect of the new general act on local ordinances relating to private day-care centers.

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It is my opinion that the Children and Youth Act of 1963, being a general and comprehensive act coverning the licensing, regulation and supervision of private day-care centers for preschool children on a state-wide basis, renders all local municipal and county ordinances relating to the licensing, regulation and supervision of such centers by local authorities null and void whether such local ordinances are consistent or inconsistent with the new Act.
Georgia Laws 1963, pp. 81, 110 (Georgia Code Ann. 99-214) provides for the licensing, regulation, and inspection of "child welfare agencies," and vests the authority to promulgate the standards, rules and regulations governing such licensing in a State Board for Children and Youth established by the Act. The Act further defines the term "child welfare agency" as including "child-caring institutions," "family day-care homes" and "day-care centers." See Georgia Code Ann. 99-203. The Act does not contain any reservation or grant of authority to local county or municipal authorities regarding the enactment of ordinances concerning such agencies and centers (whether said ordinances are consistent with the general law or not) and to the contrary it expressly provides that its purpose is to provide "a comprehensive and coordinated program of public child welfare and youth services," including "licensing and supervising private and local child caring agencies and institutions." See Georgia Code Ann. 99-202, 99-209.
Although the rule in other jurisdictions is to the effect that an ordinance will not be rendered null and void by subsequent legislation on the same subject matter if there is no conflict or inconsistency between the two (see 37 AM. JUR. Municipal Corporations 165 (1941), the law in Georgia is otherwise. Article I, Section IV, Paragraph I of the Constitution of Georgia (Georgia Code Ann. 2-401) provides in part:
"Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law."
The use of the phrase "no special law" rather than "no inconsistent special law" is the crux of the matter and thus in Georgia the entire subject matter of a general law is placed beyond reach of special laws. See, e. g., City of Atlanta v. Hudgins, 193 Ga. 618, 623 (1942) ; Giles v. Gibson, 208 Ga. 850, 852 (1952). This, of course, goes far beyond the rule in other jurisdictions that merely the repugnant and inconsistent provisions of local ordinances must fall. Citing the Hudgins opinion the Court of Appeals in Beard v. City of Atlanta, 91 Ga. App. 584, 585-86 (1955) explained the import of the Georgia Constitutional provision as follows:
"The subject matter of an existing general law is put beyond the reach of special laws. The broad objective of this paragraph of the Constitution was manifestly to prevent the confusion and uncertainty that would necessarily result if there existed at the same time a general law and a special law dealing with or regulating the same subject matter. It was intended to insure

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that once the legislature entered a field by enacting a general law, that field must thereafter be reserved exclusively to general legislation, and not be open to special or local laws. The terms of the Constitution do not limit this rule to those fields and subjects which have been completely exhausted by a general law. It embraces every field and subject which has been covered, though superficially, by a general law. If such a law is not exhaustive and fails to reach every minute element of the subject dealt with, the remedy, and the only constitutional remedy for a more exhaustive legislative treatment, is by amendment of the general law by a general enactment. It can not be done by amending or supplementing the general law by a special law.... The mere fact that the special law deals with some remote segment or element of the general subject embraced in the general law, which segment or element is not dealt with by the general law, does not alter the fact that such a special law is enacted in a case where provision has been made by an existing general law."
Beard v. City of Atlanta, supra, is especially relevant to the instant question of licensing and regulating day-care centers for preschool children in that the municipal ordinance there found to be invalid was also one attempting to license and regulate, to wit: the trade of barbering, where such business was already regulated by a general act of the state legislature. It is well settled that the constitutional prohibition under consideration covers municipal ordinances as well as special acts of the General Assembly. See Jenkins v. Jones, 209 Ga. 758, 763 (1953) and cases cited therein. And no distinction can be drawn on the point of whether or not the special act (or municipal ordinance) predates the general act inasmuch as a subsequent general act of the legislature will render extant and previously valid municipal and county ordinances on the same subject matter null and void. Moore v. City of Tifton, 84 Ga. App. 280 (1) (1951).
It is obviously true that the constitutional directive, while easy to state, may in some instances be difficult in application. This is especially so where the general law enacted by the legislature is narrow in scope. In Irwin v. Torbert, 204 Ga. 111 (1948), for example, a majority of the Supreme Court of Georgia, over the spirited dissent of three justices, held that a general law pertaining to fire exits was basically designed for protection of lives in a building after a fire occurred and did not deal with the same subject matter as (and hence did not preclude) a city ordinance relating to construction materials, safety devices and systems, which the majority considered to be designed to prevent fire or the spread of fire. In any event the problem of identity of subject matter which divided the Supreme Court in the Tolbert case would not appear to be present in the instant situation where the act is comprehensive rather than narrow, and by its own words is designed to provide "a comprehensive and coordinated program of public child welfare and youth services," including "licensing and supervising" private child caring agencies and institutions.
For this reason, it is my opinion that the Children and Youth Act of 1963, being a general comprehensive Act covering, among other

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things, the licensing, regulation and supervision of private child welfare agencies (including day-care centers for preschool children) renders all municipal and county licensing, regulatory and/or supervision ordinances pertaining to such agencies and centers null and void.
January 9, 1964
TEACHER TENURE
You have requested our views concerning the so-called three year "probation period" for teachers and its general acceptance by the boards of education.
I believe that in the absence of any "local law" to the contrary validly enacted by the General Assembly, any "three year probation period" established by a local board of education would be invalid to the extent that it confers any tenure rights upon teachers upon the expiration of such period. In the absence of any such local law, the term of employment of any teacher is limited to one year.
Although the General Assembly has enacted no statute expressly limiting the term of employment of a teacher to a single year, it has always been the position of the Attorney General that by clear implication various statutes do so limit the term of teacher employment to one year and that in the absence of any "local law" enacted by the General Assembly, the local boards of education cannot enter into a valid contract for any longer period. See Ops. Att'y Gen. 285, 289 (1954-56) ; Ops. Att'y Gen. 123 (1957).
It may be noted that 78 C.J.S. Schools and School Districts 185 (b) (1952), states:
"The power of the school authorities to fix the term of employment may be restricted by statutes which impliedly limit the term of employment, as, for example, to one year where the statute provides for an annual levy of school taxes, limits the life of a teacher's certificate to one year, and places the school budget and curriculum on a yearly basis, or where the city charter contemplates annual appropriations for the support of the schools."
Georgia Code Ann. 32-1118 provides for the board of education to "annually" recommend to the fiscal authorities of the county the rate of levy for educational purposes, and the education budget is calculated on an annual basis. See Georgia Code Ann. 32-614 through 32-621. The State Board of Education "annually" fixes a schedule of minimum salaries for teachers, see Georgia Code Ann. 32-606 (which are paid on a ten month basis under Georgia Code Ann. 32607). Georgia Code Ann. 32-603, which immediately precedes the section on teacher contracts, is also significant in that it expressly places the public schools on a yearly basis. Georgia Code Ann. 321305 (which deals with situations where a school is closed by Executive Order of the Governor) refers to "the twelve month contract"

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(emphasis added) and speaks of the Governor's authority to enter into "an additional twelve months contract with any such teacher enumerated herein for an additional twelve months period."
Perhaps the most significant statute limiting the term of teacher contracts to a period of one year, however, (especially in view of the above mentioned calculation of the education budget on an annual basis) is Georgia Code Ann. 32-928. This section provides:
"It shall be unlawful for any board of education to make any contract involving the expenditure of funds in excess of the total appropriation for the current fiscal year, ... Any indebtedness created, contract made, or order or draft issued in violation thereof shall be void."
The last mentioned provision would clearly seem to prohibit any contractual obligation of payment or compensation to a teacher beyond the one year period. This limitation of any fiscal obligation to a single year, in conjunction with the other statutes cited herein, in my personal opinion, quite definitely precludes the possibility of a county board (in the absence of any valid "local law" enactment of the General Assembly) entering into a binding teacher contract for a term in excess of one year. For this reason, any "three year probation period" established by a local board could have no legal significance insofar as tenure after the completion of such period is intended.
January 13, 1964
OPINION TO THE STATE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether state prison labor may be used to remove shrubbery and other materials from private property. Your letter relates specifically to such items donated to the Stone Mountain State Park.
I have previously ruled that the use of convict labor on private property is not prohibited where the sole benefit would flow to the State of Georgia. Ops. Att'y Gen. 248-249, 250, 250-251 (1958-59).
I have also pointed out the limitations and pitfalls that exist in such situations in Ops. Att'y Gen. 249 (1958-59):
"Such arrangements afford ample opportunities for abuse, but it is a policy matter for the Board to determine as to whether they should be prohibited altogether. Conducted on a large scale, they might very well assume a different character, and constitute the 'doing of business' for profit, which is illegal."
In view of the above, I would reiterate my former rulings that the use of convict labor on private property is permissible in situations where the sole benefit flows to the State and that it is the duty of the Board to examine each set of facts and determine whether the State is benefitting in the necessary degree.

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You state in your letter that the shrubbery in question is valuable and is to be used on State property. Under these circumstances, I am of the opinion that it is permissible to use prison labor to remove these items from private property.
January 14, 1964
SECURITY INTERESTS
This is in reply to your request concerning an interpretation of the filing requirements with reference to security interest in motor vehicles.
Georgia has now in effect two acts which are new to most practitioners in this area. They are the Uniform Commerical Code and the Georgia Motor Vehicle Certificate of Title Act. The Uniform Commerical Code became effective at 12:01 A.M. on January 1, 1964. Georgia Code Ann. 109A-10-101. The Motor Vehicle Certificate of Title Act became effective July 1, 1962 (Ga. Laws 1962, p. 79, 91).
Article 10 of the Uniform Commercial Code (Georgia Code Ann. Chapter 109A-10) repealed the previous Code sections and laws in this State pertaining to security transactions such as you have inquired about, and now such transactions must be governed by the provisions of the Commercial Code.
Section 109A-9-302 (1) provides that financing statement must be filed to perfect all security interests with certain enumerated exceptions and then states at subsection (c) " ... but filing is required ... for a motor vehicle required to be licensed; ... " Section 109A9-302 (3) provides: "The filing provisions of this Article do not apply to a security interest in property subject to a statute (b) of this State which provides for central filing of, or which requires indication on a certificate of title of, such security interests in such property.
" (4) A security interest in property covered by a statute described in subsection (3) can be perfected only by registration or filing under that staute or by indication of the security interest on a certificate of title, or a duplicate thereof, by a public official."
The Motor Vehicle Certificate of Title law is, in my opinion, such a law as is referred to in the Code section above in that it provides for a central filing of security interest in motor vehicles required to be registered or the indication of such security interest on a title certificate. The Motor Title Act now requires all 1963 model vehicles and subsequent model vehicles to have a title certificate upon which security interest will be noted and the Act also provides for central filing as to all other vehicles (Section 40, Motor Vehicle Certificate of Title Act).
The Uniform Commercial Code, therefore, requires filing with respect to security interest in motor vehicles which are required to be registered, and provides that that filing to be effective must be pursuant to the Motor Vehicle Certificate of Title Law. The State

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Revenue Commissioner has available forms for the filing of security interest in older model vehicles, such forms being identified by the symbol T3, and with respect to 1963 model vehicles and later model vehicles application for certificate of title must be made showing the security interest on forms numbered and identified as Tl.
Central filing under the Motor Vehicle Certificate of Title Law would, in my opinion, be the only means of perfecting a security interest in a motor vehicle after January 1, 1964.
January 15, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
I have your letter requesting my opinion as to whether the proposed project "BEES" contravenes any law of Georgia.
As I understand project "BEES" its purpose is to assist children between the ages of sixteen and twenty to learn and acquire skill in certain trades and fields by means of instruction, counseling, and actually setting up and conducting businesses, somewhat along the line of Junior Achievement, and also to ameliorate the "drop out" problem in the schools.
Under the laws of Georgia dealing with assistance to dependent children, Chapter 99-9, Georgia Code Ann. 99-902 defines "dependent child" to mean a child under the age of sixteen. It is, therefore, my opinion that there is no provision in the law for the granting of assistance to children between the ages of sixteen and twenty as contemplated in Project "BEES," and that assistance to such children would not be legal.
The project appears to be a most worthwhile and beneficial one which should be commended to the General Assembly to empower by way of amendment to Chapter 99-9 of the Georgia Code Ann., if you are so advised. In this connection, it is noted that you had proposed to pay the benefits to the minor recipents directly; and this should be authorized in any proposed legislation which may be submitted to the General Assembly.
January 16, 1964
PUBLIC AUTHORITIES
This will acknowledge receipt of your letter asking my unofficial opinion as to whether or not a member of a public authority can engage in business transactions with the public institution the authority is set up to govern.

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I am pleased to call your attention to 2 of a 1959 Act of the General Assembly entitled, "Transactions with State - Actions Constituting Crimes," which is codified as 26-5004 of the Georgia Code Ann. and provides as follows:
"26-5004. Interested persons acting as Government agents. -Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than 20 years."
Please note that this Code section places its prohibition upon those State officers, employees, agents and members of authorities created by the laws of Georgia who receive compensation or per diem from the State for their services. Section 99-1504, Georgia Code Annotated, provides that the trustees shall receive no compensation for their services, but shall be reimbursed for their actual expenses incurred in the performance of their duties. It appears, then, that 26-5004 of the 1959 Act does not refer to a member of a hospital or other public authority who, by reason of his status in regard to compensation and per diem, falls specifically outside the purview of the Act.
It is my unofficial opinion, therefore, that a member of a public authority who receives neither compensation nor per diem is not prohibited from dealing with the public institution the authority is set up to govern.
January 17, 1964
OPINION TO THE DEPARTMENT OF CORRECTIONS
Pursuant to your request for an interpretation of Georgia Code Ann. 27-2515, as applied to members of the Press who have requested to be present at the execution of condemned persons, it is my firm opinion that the statute does not authorize their presence unless the condemned person desires it.
The statute provides:
"There shall be present at such execution the warden of

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the penitentiary, or a deputy warden thereof, who shall serve as executioner, at least two assistants, two physicians to determine when death supervenes, an electrician, a suitable guard, and, if the condemned person so desires, his counsel, relatives and such clergymen and friends as he may desire. (Emphasis supplied)
This legal maxim consistently adhered to in the interpretation of statutory law is that the express mention of certain things implies the exclusion of other and different things. Since this statute explicitly enumerates who may be witnesses at an execution, it is conclusive that the Legislature intended to exclude any other witnesses except the condemned person's counsel, relatives and such clergymen and friends as he may desire. This exception to the designated persons requires a determination by the condemned person, which must be conveyed to you within a reasonable time before the execution. If the condemned person should express a desire to have some member of the Press present you would be legally authorized to admit him; otherwise, you are required by this statute to restrict those present to the ones named in the statute, and others requested by the condemned.
January 17, 1964
SANITATION
You ask our unofficial opm10n as to the power of the Laurens County Board of Health to adopt rules and regulations as to sanitation.
The General Assembly provided by appropriate legislative act (Georgia Laws 1901, p. 61; 1914, pp. 124, 125; 1943, pp. 371-385; 1959, p. 373) codified as Georgia Code Ann. 88-203 that, "The county boards of health of the several counties shall have the full power and authority to adopt, enact, establish and maintain all such rules and regulations not inconsistent with the laws and Constitution of this State and of the United States as they deem necessary and proper for protecting the health of their respective counties, and preventing the introduction, generation, and spread of infectious and contagious diseases therein." (Emphasis added)
It is further provided that if any citizen shall be aggrieved by any order made pursuant to these rules and regulations he has a right of appeal, first to the county board and from there to the superior court in the county of his residence.
Section 88-205 of the Georgia Code Annotated provides that such rules and regulations adopted as provided above must be published at least once in the newspaper of the county in which the sheriff advertises and be posted at the county courthouse door before they shall have the force and effect of law. From your memorandum it appears that these Rules and Regulations have been adopted by the

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County Board of Health and have been advertised in accordance with law. Therefore, it is my opinion that such now have the force and effect of law. Any citizen has the right of appeal if he shall be aggrieved by any order made and enforced by the Laurens County Board of Health.
A county's legal status is fixed, and it can exercise only such power as the General Assembly may grant. It possesses no powers not so conferred, either expressly or by fair implication from the statutes applicable. Albany Bottling Co. v. Watson, 103 Ga. 503, 504 (1898). However, express authority to a county board to do a particular thing will imply authority to employ such means and agencies as may be necessary to accomplish the act. Atlanta Chambe'r of Commerce v. McRae, 174 Ga. 590, 595 (1932).
It would therefore appear that the express authority to a county board of health to make rules and regulations for governing health in its confines will allow such agency to make and enforce such rules that are not in conflict with the laws of this State thereof. See also in this connection Oliver v. Hall County Memorial Hospital, 62 Ga. App. 95 (1940).
It is therefore my view that under the provisions of the Ellis Health Law, the Laurens County Board of Health has made valid Rules and Regulations governing the sanitary control and environment of the citizens of said county, provided such Rules and Regulations are not inconsistent with or violative of the Constitution and laws of this State or the United States.
January 21, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This in in response to your request for advice or an opinion on who is the proper person to issue a fi. fa. against a public utility.
It is my opinion that the State Revenue Commissioner is the proper person to issue a tax execution against a public utility.
In the case of railroads the statute clearly re,quires that the State Revenue Commissioner issue the fi. fa. Georgia Code Ann. 92-2705 (Georgia Laws 1889, p. 29) states:
"If any railroad company shall refuse to pay . . . it shall be the duty of the State Revenue Commissioner to issue an execution in the name of the State against such railroad company...."
Although the language of 92-7301 (Georgia Laws 1931, pp. 7, 33) does not describe a mandatory or compelling duty and merely empowers the State Revenue Commissioner to issue an execution, it is my opinion that a fi. fa. against a public utility other than a railroad should also be issued by the State Revenue Commissioner.

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This strict concept of mandatory duty in the case of all other utilities is strengthened in the light of 92-2308 (Georgia Laws 1902, pp. 37, 39; 1919, p. 343) which states that collection and enforcement of all taxes due each municipality, school district or county on a special franchise shall be as provided for railroad companies.
January 24, 1964
OPINION TO THE COMPTROLLER GENERAL
This is in reply to your request for an official opmwn as to whether the State Fire Marshal has authority under the provisions of Georgia Code Ann. 92A-723, upon receipt of a written complaint, to enter and investigate those buildings and premises which are not among the classes of buildings enumerated in 92A-710 and which are not otherwise within the Fire Safety Act.
Section 92A-710 provides:
"92A-710. Building Exits Code as basis for regulations as to exits, fire resistive partitions, etc.-The Commissioner may promulgate reasonable rules and regulations embodying the fundamental principles of the Building Exits Code (American Standards Associations, 1948 edition), dealing with exits, fire resistive partitions retarding the spread of flame and gas both vertical and horizontal, fire prevention installations and all other such devices for the protection of life. These regulations, as to this section, shall include the following classes of buildings or structures, both new and existing: (1) all buildings or structures more than three stories in height; (2) all buildings or structures having an occupancy either theoretical or actual of a total of 75 or more persons on floors other than the first or ground floor; (3) all buildings or structures having a total occupancy of more than 200 persons; (4) all buildings or structures having a gross area on any one floor of 22,500 square feet; and (5) all of the following buildings: hotels, apartments or multi-family houses over two stories in height, dormitories, convents, monasteries, churches, schools, colleges, universities, academies, hospitals, sanitariums, insane asylums, orphanages, reformatories, jails and prisons, theaters, motion picture theaters, public assembly halls, lecture halls, auditoriums, dance halls, recreation halls, armories, stadiums and grandstands, amusement park structures: Provided, that all buildings occupied solely as one and two-family residences and all buildings used exclusively for agricultural purposes outside of incorporated areas are exempt from the above classification." Georgia Laws 1949, pp. 1057, 1060.
This section relates only to and defines the buildings for which the Commissioner may promulgate reasonable rules and regulations embodying the fundamental principles of the Building Exits Code. Note the language used: "these regulations, as to this section, shall

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include the following classes of buildings or structures...." (Emphasis supplied)
The Commissioner is also given authority to promulgate other rules and regulations under 92A-715, 716, 717, 718, 719, and 720, and under 92A-718 he is given authority to set up standards for flameproofing, fire escapes, fire prevention equipment, devices, and all other similar safeguards which may tend to conserve property and safeguard life. There are no specific definitions of the buildings to which these rules and regulations may apply except that 92A-720 applies only to hotels, apartment houses, department stores, warehouses, storage places, and places of public assembly.
Section 92A-714 provides that every city shall set up the machinery for local inspections with the assistance and advice of the State Fire Marshal and 92A-706 provides for the appointment by the State Fire Marshal of local Deputy State Fire Marshals, chosen from city inspection departments for the purpose of making inspections. It provides further that if there is no local inspection machinery set up, the State Fire Marshal and deputies must assume those duties.
Section 92A-723 provides :
"92A-723. Right of entry to inspect premises.-The Commissioner and the various officials delegated by him to carry out the provisions of this Chapter shall have the authority at all times of day and night to enter in or upon and examine any building or premises where a fire is in progress or has occurred and other buildings or premises adjacent or near the same. Likewise, the Commissioner and his delegated authorities have the right to enter in and upon all buildings and premises subject to this Chapter at any reasonable time for the purpose of examination or inspection. Upon complaint submitted in writing, the Commissioner and the various officials delegated enforcement authority under this Chapter may enter in or upon any building or premise between the hours of sunrise and sunset for the purpose of investigating such complaint. The State Fire Marshal or his deputized authority upon the complaint of any person whenever he or they shall deem it necessary, may inspect or cause to be inspected all buildings and premises within their jurisdiction." Georgia Laws 1949, pp. 1057, 1964.
It would logically follow, then, that the State Fire Marshal and his delegated authorities, including local Deputy State Fire Marshals, have the right to make inspections of all buildings and premises upon which rules and regulations have been duly promulgated according to law to see that such rules and regulations are being complied with. That would include any building or premises defined in 92A-710 as well as any building and premises falling within the other sections as mentioned above.
In addition, 92A-723 clearly sets forth the right, in various situations, of the Commissioner or the State Fire Marshal and his

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delegated authorities to make inspections. One provides for the right to inspect any building or premises "subject to this Chapter," and the others provide for inspections in other situations, including the right of the Commissioner and his delegated authorities, after receiving a complaint in writing, to "enter in or upon any building or p~remise between the hours of sunrise and sunset for the purpose of investigating such complaint." (Emphasis supplied) There is no restriction placed on the right of entry and it appears clear that it arises upon receipt of a written complaint.
The question then arises, however, as to what constitutes "a complaint submitted in writing." It conceivably could include any type of written complaint and would not necessarily have to be confined to a legitimate fire hazard or even be related to a fire hazard at all, for that matter. To give the words any meaning at all they must be construed in the light of the entire context of 92A-723 and the other sections of the Act. Therefore, it can certainly be assumed that the complaint would have to allege the existence of some fire hazard. The Act sets forth the right of the Commissioner, in various areas of fire safety, to promulgate reasonable rules and regulations and to set up standards for certain safeguards which tend to conserve property and safeguard life. It is reasonable to assume that "a complaint submitted in writing" must allege a violation of those rules and standards which have been established. In other words, the complaint must allege a violation of the law. Otherwise, by what standard could the Commissioner, State Fire Marshal, or any of their delegated officials determine whether or not a fire hazard exists? Some determination would have to be made as to whether a certain condition is or is not a fire hazard. In construing the words "a complaint submitted in writing" with 92A-723, in which they are contained, in its entirety and with the other sections of the Act, it appears clear that the complaint would have to allege a violation of one of those sections.
It is my opinion, therefore, that the State Fire Marshal and his delegated authorities, including local Deputy State Fire Marshals, do have the right to enter and inspect any building or premises after a written complaint has been received regardless of whether the coniplaint involves a building or premises falling within the classification of buildings in 92A-710, provided that the complaint alleges a violation of the law.
January 29, 1964
OPINION TO THE DEPARTMENT OF BANKING
In your letter you wished to know if it would be possible and permissible, for a bank to open a deposit account in the name of two or more persons under the provisions of Georgia Code Ann. 13-2039, or whether such an account would be limited to only two persons.

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The section to which you make reference reads:
"When a deposit has been made, or shall hereafter be made, in any bank in the names of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not; and the receipt or acquittance of the persons so paid shall be a valid and sufficient release and discharge to the bank for any payment so made."
That section has been the subject of appellate court opinions on several occasions. The latest seems to have been Nash v. Martin, 90 Ga. App. 235 (1954), in which the Court stated the Code section has reference only to the liability of the bank as to such deposit, and does not affect the right to the property as between the parties. Its effect is thus to release the bank from any liability which might have been incurred through payment to one depositor to the exclusion of the other. In effect, as far as the bank is concerned, a joint tenancy has been created through operation of this law and without any express contract.
The same effect could be realized through execution of an agreement at the opening of the account whereby both parties agreed the deposit was to be made to the name of each, was to be payable to either or to either or the survivor, and they agree to release the bank from any liability which it might otherwise incur through payment to either of the depositors. Likewise, I feel if the agreement were so worded three or more depositors could make a joint deposit under similar terms and the bank could be protected through execution of a waiver of any liability by the depositors.
Common Law recognized the doctrine of survivorship among joint tenants, but this was abolished by the Constitution of 1777 and has not been revived in Georgia. However, it has been often held that
"Joint tenancy, with its incident of survivorship, as it existed at common law, is abolished. While survivorship is not favored by the law of this State, and will never arise by operation of law, it is not prohibited; and when a contract provides for it in express terms, or by necessary implication, the law will allow the contract to be enforced." And further :
"Of course all presumptions are against such an intention; but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such doctrine may not become operative under the laws of this State."
Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (1903). Thus, while filing the agreement might not be binding as between the depositors in determining who was entitled to the moneys, such an agreement would serve to protect the bank against incurring any liability through payment to anyone of several depositors, if an agreement had been drawn for this purpose and duly executed.

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However, Georgia Code Ann. 13-2039, would not serve to afford this protection for deposits made by more than two persons. It uses the words "two" and "either." In my opinion had it intended applicability to more than two persons, it would have said "two or more" or "more than one." Use of the word "either" also connotes only two; if more than two, preferred usage would be "any." Either is defined as: 1. "One or the other," or, 2. "each (of two)," and other similar phrases implying a choice between two. Therefore, I feel you would have to advise a bank that the accounts would be limited under 13-2039 to two persons, and that the service for more than two persons could not be rendered on the strength of that Code section alone. However, I do fool the service can be rendered, although it would require an appropriate agreement to be executed by all the depositors joining in the account.
January 30, 1964
OPINION TO THE BUILDING AND LOAN COMMISSIONER
This is in reply to your recent letter in which you stated you had received inquiries from interested parties concerning the availability of building and loan associations as a media for investment of funds by municipalities and other public corporations. You stated that although the practice seems authorized by Georgia Laws 1952, p. 305 (Georgia Code Ann. 16-437), some question had arisen whether the constitutional prohibition against municipalities becoming stockholders would be in conflict and render 16-437 unconstitutional.
Georgia Laws 1952, p. 305 (Georgia Code Ann. 16-437) reads:
"Accounts of associations as investment for trust funds and other funds. Administrators, executors, guardians trustees, and other fiduciaries of every kind and nature, insurance companies, charitable, educational, eleemosynary and public corporations and organizations, and municipalities and other public corporations and bodies, and public officials are authorized to invest funds held by them, without any order of any court, in accounts and certificates of State-chartered associations and Federal savings and loan associations, which are insured by Federal Savings and Loan Insurance Corporation, and, to the extent of such insurance and such investments, shall be deemed and held to be legal investments for such funds." (Emphasis added)
With no other factors considered, it seems undisputable the General Assembly intended that placing of funds in savings and loan associations would be a legal investment. This is further evidenced when it is observed this 1952 Act struck the previously existing section and substituted a new one which substantially differed and granted considerably more investment authority than the previous section.

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It was suggested that this law (Georgia Code Ann. 16-437), by authorizing investment of funds in these associations, would make an agency or official so investing a stockholder of a corporation, and thus fall within the prohibited area of Art. VII, Section V, Paragraph I of the Georgia Constitution (Georgia Code Ann. 2-5801):
"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. . . ."
The doubt raised as to constitutionality of the law under consideration stems not from any inherent defect in Georgia Code Ann. 16-437, but from identification of depositors in savings and loan associations as "shareholders," which term is normally thought of as practically synonomous with the terms "stockholders." If a county may not become a "stockholder," neither may it become a "shareholder." The simple logic of this extension is unfortunately deceptive. Use of the term "stockholder" in a savings and loan charter cannot bestow upon depositors a legal status alien to their true characteristics. Court decisions which have considered savings accounts in federal savings and loan associations seem to almost uniformerly hold such accounts are not "stock," though termed "shares," and the owner of an account is not a "stockholder." Perhaps the most succinctly stated description of the true concept is found in Rummens v. Home Savings and Loan Ass'n, 182 Wash. 539, 47 P.2d 845 (1935):
"While the members of savings and loan associations may sometimes be referred to as stockholders, they are depositors, rather than investors in corporate stocks."
Numerous cases may be cited to support the increasingly universal recognition of the creation of a debtor-creditor relationship by placing money in a savings and loan association.
The fiction of purchase of "shares" is not sufficient to remove the true status far from that created by depositing monies on time deposit or in a savings account of a bank. It seems in every sense equivalent, and for all practical purposes is identical. See in this connection Ray v. Leader Federal Savings Ass'n, 292 S.W.2d 458 (1953); Ham v. Woodward, 151 Ind. 132, 50 N.E. 33 (1898) ; Aberdan Savings and Loan Ass'n v. Chase, 157 Wash. 351, 289 P. 536, 71 A.L.R. 232 (1930); Ohio Valley Building and Loan Ass'n v. Cabell County Court, 42 W.Va. 818, 26 S.E. 203 (1896). To inform the average person he had become a "stockholder" when he placed his money in a building and loan association would precipitate incredulous disbelief. Alabama v. Guaranty Savings, Building and Loan Ass'n, 225 Ala. 481, 144 So. 104 (1932), observed the actual character of "shares" was not controlled by the descriptive word, but by the qualities the "shares" possessed, and in passing upon a franchise tax on stock stated "if members of a building and loan association are shown to be in effect but depositors upon an interest-bearing basis, not pos-

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sessing the usual attributes of stockholders, the stock of such associations is not stock...." Reference to Benton's Apparel, Inc. v. Hegna, 7 N.W.2d 3 (1942), will provide what is perhaps one of the clearest (though so lengthy as to preclude inclusion here) expositions of the exact legal nature and status of a savings account in a savings and loan association.
The terms "shareholder" and "stockholder" as used in charters and operations of savings and loan association is a remnant of an historical fiction remaining in the modern concept of such corporations. Its self-perpetuation may be well laid to the lack of any necessity of subjecting the term to open inspection and review.
I feel any construction of the law in question which, through analogy, renders it violative of the Constitution should be rejected. It is my opinion that when considered against the term "stockholder" in the Constitution, a "shareholder" owner of an account in a savings and loan association possesses no attributes of a true "stockholder" as used in the Constitution, but only a chose in action basically similar to that of a depositor in a bank, establishing a debtor-creditor relationship-and the constitutional prohibition against becoming a stockholder is thus inapplicable. Thus investment of funds by municipalities and other public corporations and bodies and public officials, under conditions of the statute would, in my opinion, be legal and proper.
January 31, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you pose three questions concerning the qualifications of county school superintendents under Georgia Code Ann. 32-1004, as amended by Georgia Laws 1963, p. 356. You have requested opinions as to the following questions:
1. Whether an individual with less than three years of actual teaching or education administrative experience may qualify for the office of county school supe:rintendent.
2. Whether military service may be substituted for actual teaching experience or education administration experience as specified by 3~1004 of the Code.
3. Whether the eligibility certificate required by 32-1004 to be filed with the State Board must be filed before the primary election or whether it is sufficient that such certificate be filed before the general election.
My opinions as to the questions presented and the reasons therefor are as follows:
OPINIONS
1. Except where one of three statutory exceptions are applicable, an individual with less than three years of actual teaching or edu-

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cation administrative experience may neither qualify for nor hold the office of county school superintendent. (The three exceptions being [a] persons holding such office at the time of the effective date of the Act; [b] persons who have previously held such office for at least one term; and [c] persons seeking the office in a school system in existence prior to the adoption of the Constitution of 1877.)
2. Military experience, in itself, may not be substituted for the actual teaching or educational administrative experience required by statute.
3. The certificate required by Georgia Code Ann. 32-1004 to be filed with the State Board of Education may be filed anytime before qualifying to run in the general election and need not, under state law, be filed before the primary.
DISCUSSION
1. That portion of Georgia Laws 1963, p. 356 (Georgia Code Ann. 32-1004) relating to teaching experience states:
"Before any person shall be qualified or eligible to hold the office of county superintendent of schools, he shall be ... and shall have had not less than three years of actual teaching or education administrative experience...." (Emphasis added)
It is difficult to imagine how the legislature could have utilized any language which would more clearly express the mandatory nature of the "three year experience" qualification, and in my opinion, the only exceptions to such obligatory language would be those which are expressly provided for by statute. The final sentence of 1 of Georgia Laws 1963, p. 356, for example, provides that the Act "shall not affect any school system in existence prior to the adoption of the Constitution of 1877, nor any superintendent of schools of any such school system." And 2 provides for two more exceptions by its declaration that the provisions of the Act
"shall not apply to any person holding the office of county superintendent of schools at the time of the effective date of this Act, nor shall it apply to any person who has served at least one term as a county superintendent of schools."
It is my opinion that unless his situation falls into one of the three above-mentioned exceptions, an individual not possessing three years of actual teaching or administration expetience can not legally qualify for or hold the office of county school superintendent.
2. The "experience in education" qualification set forth in Georgia Laws 1963, p. 356 (Georgia Code Ann. 32-1004) would clearly seem intended to establish a minimum level of experience in the field of education. There is nothing in the Act which would give any indication of an intention of the General Assembly to permit experience in any other field (e.g., military service) to be substituted for experience in education and I am, therefore, of the opinion that military experience, in itself, may not lawfully be substituted for actual teaching or educational administrative experience. This is not to say,

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on the other hand, that an individual whose military duties were in the field of actual teaching or educational administration could not include the same in computing his actual teaching or educational administrative experience.
3. Concerning the time when the eligibility certificate required by Georgia Code Ann. 32-1004 must be filed with the State Board, the pertinent clause states:
"Before becoming eligible to qualify for election or appointment, candidates for the position of county school superintendent of schools must file with the State Board of Education a certificate under oath, showing qualification hereunder. . . ."
Although the distinction between a primary election, which merely selects a particular political party's nominee for office and the general election, which in the absence of legal disqualification selects the person who will hold the office, is both manifest and well recognized by the election statutes of Georgia (see e.g., Georgia Code Ann. 34-1903, 34-1904, 34-1914), the provision here in question fails to specify whether the certificate to be filed with the school board must be filed before qualifying to run in the primary election or merely before qualifying to run in the general election. Although the absence of any decisional clarification of the matter obviously dictates that the prudent course of action for an individual seeking the office of county school superintendent is to file the required certificate before qualifying to run in the primary election, I am of the opinion that in the event of litigation the courts would probably hold that filing at any time prior to qualifying to run in the general election would be sufficient. This opinion is based upon what appears to me to be the principal purpose of the legislature in enacting the statute, to wit: the establishment of minimal standards and qualifications required of the individual who actually holds the office of county superintendent and exercises the important powers incidental to such office. Assuming this conception of the dominant legislative intent to be correct, there would appear to be little reason to infer, in the absence of express and unambiguous statutory language to the contrary, that the legislature also intended to bar from office an individual who although unable to meet the standards and qualifications of the office at the time of the primary election, does meet the statutory qualifications at the time he qualifies to run in the general election. Inasmuch as the filing of the required certificate is clearly designed as enforcement of the minimal standards and qualifications set forth by the statute, it follows that this item designed to evidence compliance with statute's requirements, in the absence of express and unambiguous statutory language to the contrary, ought not to be required before the time when the qualifications themselves must be met.
In closing, it should be emphasized that by the express wording of the statute the final date for filing in accordance with the foregoing is not the date of the general election itself, but is the final date when a person may qualify for election. Under existing law this would generally be forty-five days before the regular election. See Georgia Code Ann. 34-1904 (b). Although at first blush it might

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seem that this is somewhat inconsistent with the above-stated general purpose of the statute of fixing the standards and qualifications required of the individual who actually holds the office (question arising as to why, if this is so, qualification at any time prior to being sworn into office would not be sufficient), it would seem that this apparent inconsistency may be resolved by the fact tha_t the expenses of general and special elections (with the latter a possible consequence of the election of an unqualified individual) are borne by the county, Georgia Code Ann. 34-1904, while expenses of primary elections are borne by the political party holding the same, Georgia Code Ann. 34-1903, 34-1914, instead of the taxpayer.
February 4, 1964
COURT OF ORDINARY
You asked whether the Ordinary of a county can create an insolvent cost fund, what restrictions are imposed upon fines for traffic cases disposed of by the Court of Ordinary, and whether the sheriff can participate where the arrest was made by the State Patrol and no bond was given. You also asked what a typical breakdown of costs would be.
In answer to the question as to an insolvent cost fund for the Ordinary, this office has rendered several opinions recognizing such funds (0p8. Att'y Gen. 77, 85, 89, 90 (1961)), and at least one opinion (0p8. Att'y Gen. 48 (1958-59)), holding an ordinary is authorized to establish an insolvent fund. These are predicated upon Cooper v. Lunsford, 203 Ga. 166 (1947), which was a mandamus action seeking to require an ordinary to pay over all monies collected from traffic fines under Georgia Laws, Ex. Sess., 1937-38, p. 558, as amended (Georgia Code Ann. 92A-501, et seq.) and also asking declaratory judgment as to the correct amount of costs due officers of that court. Though the opinion is far too lengthy to reproduce, it may be summarized as follows :
Div. 1. The Court determined that the wording of Georgia Code Ann. 92A-505 clearly indicated the General Assembly intended payment of costs to officers, even where fine insufficient, and that the sheriff and ordinary were both to participate.
Div. 2. The Court held the then existing phraseology "payment of fines . . . to . . . the county treasury . . . within 24 hours after collection," was directory only (The law has been since amended to provide for payment by the ordinary "by the 15th day of each month the remainder of all fines for the preceding month" to the treasury).
Div. 3. The Court held that where a warrant was in fact issued, an ordinary is entitled to costs for such.
Div. 4. This portion concerned with costs due a sheriff.

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The case was decided in 1947, and thereafter some changes, both in this law, and in general law as to fees, were enacted.

The latest appellate judicial interpretation, and the only one since changes in law affecting the fees, is Sikes v. Charlton County, 103 Ga. App. 251 (1961). This was a declaratory judgment as to the amount of costs to which a sheriff and ordinary were entitled in traffic cases. In Division 1 of the opinion the Court affirmed a ruling of the court below that under Georgia Code Ann. 92A-505 and 92A-512, a sheriff, as arresting officer was entitled to an arrest fee of $6.00, a fee of $4.00 for taking bond, and a fee of $3.00 for service in a criminal case pursuant to Georgia Code Ann. 24-2823. But this was limited, and it was determined that the sheriff in the case before the court not having actually rendered a service in bond forfeiture cases was not entitled to the $3.00 fee. Of course this same logic also applies to the fee for taking bond, and when no bond is posted, no fee may be claimed for this service. Georgia Code Ann. 92A-512 specifically authorizes the arrest fee.

In Division 3, the Court rules upon the fees to which an ordinary would be entitled, and again held a later amendment to another code
section governed 92A-505 and the fees of the amended (re-enacted) section ( 24-1716) controlled. Thus an ordinary would be entitled
to receive (in traffic cases) for issuing a warrant-$2.50, for holding
trial-$5.00, and for filing and docketing the case-$3.00. The court further held an ordinary could not collect for warrants not actually issued, and cannot sign warrants nunc pro tunc and become entitled to costs for issuing a warrant.

In addition to these fees, three pension funds also require payment of part of proceeds, and as a practical matter the fine (or bond) is increased sufficiently to cover these.

These funds require:

Peace Officers Annuity and Benefit Fund ------------$2.00 - $5.00 (Georgia Code Ann. 78-909. Amount progressively higher depending upon amount of
fine.)

Ordinaries Retirement Fund ------------------------------------$1.00 - $2.50 (Georgia Code Ann. 24-1716a. Amount progressively higher.)

Sheriffs' Retirement Fund ----------------------------------------$1.50 (Ga. Code Ann. 24-2810a.)

Thus, a breakdown of costs (depending upon whether service was actually rendered) would be:

Sheriff: Ordinary:

Arrest fee ----------------------------------------------$6.00 Criminal bond ---------------------------------------- 4.00 Court attendance ------------------------------------ 3.00-13.00 Trial -------------------------------------------------------- 5.00
Warrant -------------------------------------------------- 2.50 Docketing ------------------------------------------------ 3.00-10.50

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Funds:

Peace Officers ---------------------------------------- 2.00 Ordinaries -----------------~~~--~----------------------~ 1.00 Sheriffs' ---------------------~---------------------------- 1.50- 4.50
$28.00*

*(If the fine levied exceeds $25.00, but is less than $50.00, add $1.00 extra for the Peace Officers and $.50 extra for Ordinaries for a total of $29.50. Also, should the fine be less than all other costs, the Sheriffs' Fund Section is so worded as to require no payment.)

To summarily answer your questions; (1) yes, an ordinary may create an insolvent fund; (2) generally none except to pay over the difference to the treasury by the 15th day of the following month, and of course respect custodial capacity, i.e., strict accounting, etc.; (3) yes, to the extent of the arrest fee if the person was delivered to him, but not as to a bond fee if no bond was given, as this would be for a service not rendered.

February 6, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion concerning the incidence of the tax which is imposed under the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" and the "Malt Beverage Act."
The tax imposed with respect to distilled spirits and alcohol is contained in 11 of that Act which has been unofficially codified as Georgia Code Ann. 58-1046 and, as amended, provides:
"There shall be levied and collected on all distilled spirits imported into the State of Georgia a tax of three dollars and seventy-five cents ($3.75) per wine gallon, and on all alcohol imported into the State of Georgia a tax of five dollars and twenty-five cents ($5.25) per wine gallon, and a proportionate tax at like rates on all fractional parts of a gallon. There shall be levied and collected on all distilled spirits manufactured in the State of Georgia from Georgia grown products, a tax of one dollar and eighty-seven and one-half cents ($1.871/2) per wine gallon and on all alcohol manufactured in the State of Georgia from Georgia grown products, a tax of two dollars and sixty-two and one-half cents ($2.621;2) per wine gallon, and a proportionate tax at like rates on all fractional parts of a gallon. . . ."
The Georgia Supreme Court has ruled that the tax imposed by this Act is an excise tax. Scott v. State, 187 Ga. 702 (1939). Applying the ordinary signification to the words used in the Act, the tax is

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obviously imposed upon the transaction of importing such alcoholic beverages into the State or upon the transaction of manufacturing distilled spirits and alcohol, Georgia Code Ann. 102-102. The Federal law with respect to taxation on alcoholic beverages is similar in wording to the Georgia Act using such words as "There is hereby imposed on all distilled spirits in bond or produced in or imported into the United States, an Internal Revenue tax at the rate of $10.50 on each proof gallon...." 26 U.S.C. A. 5001. The Federal Tax has been held to be an excise tax that attaches immediately upon the production or upon its being imported into the United States and it has been held not to be a consumers' tax. Erie Railroad Co. v. United States, 156 F. Supp. 908 (Ct. Cl. 1957).
It is my opinion that the tax imposed on distilled spirits and alcohol in Georgia is an excise tax upon the manufacture or first import of such products. The tax would, therefore, be imposed upon the distillery or upon the first person importing the product into the State.
The "Malt Beverage Tax Act" provides in 5, unofficially codified as Georgia Code Ann. 58-765:
"Be it further enacted by the authority aforesaid that there is hereby imposed upon the business of selling malt beverages an excise tax in the sum of $10.00 for each container sold as hereinafter specified, et cetera ...."
The Supreme Court of this State has construed this tax to be an excise tax imposed upon the privilege of selling malt beverages. Ellison v. Doyal, 182 Ga. 803 (1936). See also Georgia Code Ann 53-708, 709, and 710. The tax on malt beverages is obviously imposed upon the first sale in Georgia of such products. Where the first sale in Georgia is made by a brewer, then the tax is imposed upon the brewer as he made the first sale; where the sale in Georgia is first made by a wholesaler, then the tax is imposed upon the wholesaler for he made the first sale in Georgia. The same is also true of a retail dealer.
February 6, 1964
GRAND JURY
You requested that I give you a ruling upon the intention of Georgia Code Ann. 59-309, which, in part, reads:
"In addition to the duties of the grand jury as indicated in the oath administered to them, and as required by law, it shall be their special duty, from term to term of the superior court, to inspect and examine the offices, papers, books, and records of the clerk of the superior court and ordinary, and also the books, papers, records, accounts, and vouchers of the county treasurer or depository, as the case may be, ..."

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It is my opinion this inspection and examination is limited to the official records and documents of the enumerated offices. I do not think this would extend to the private and personal books of the persons who happen to be occupying these individual offices. You will note that 59-311 refers to the "several different offices," also, 59-309, quoted above, lists as the first item of inspection the "offices."
This Code section has not been the subject of any appellate decisions except in McLarty v. Fulton County, 52 Ga. App. 445 (1936), which leaves the unmistakable impression it was intended to apply solely to official records, and the section is cited but not explained in Nichols v. State of Georgia, 65 Ga. App. 569 (1941).
February 10, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter requesting an opinion as to whether the "Goodwill Home" operated by Mr. and Mrs. Otis Brown is subject to the licensing provisions of the "Children and Youth Act" of 1963, Georgia Laws 1963, p. 81, et seq. (Georgia Code Ann. 99201 to 99-221).
From your letter and the attachment thereto, it is my understanding that there are twelve children in the home ranging in age from nine to sixteen years; that at least some of the children have parents residing elsewhere; that at the present time such children have not been legally adopted by Mr. and Mrs. Brown; and that Harvey L. Jay, Esquire, attorney for Mrs. Brown, is of the opinion that licensing is not necessary "for the reason that she [Mrs. Brown] does not consider herself operating such a home" (i.e., a children's home).
Based upon the foregoing understanding of the factual situation, it is my opinion that the home for children operated by Mr. and Mrs. Brown as "Goodwill Home" is a "child welfare agency" as defined by the Children and Youth Act of 1963, and is subject to the licensing and inspection provisions of such Act.
The Children and Youth Act (Georgia Laws 1963, p. 81, et seq.) is set forth as Chapter 2 of Title 99 of the Georgia Code Annotated. The provision dealing with the licensing of "child welfare agencies" is Georgia Code Ann. 99-214 (a), which in pertinent part provides:
"(a) Annual Ucense; standards.-All child welfare agencies, as defined in section 99-203, subparagraph (r), shall be licensed annually by the Division for Children and Youth in accordance with procedures, standards, rules and regulations to be established by the board. . . ."
The duty of inspection of all such agencies is imposed by subparagraph (1) of the same code section, which states that it is the Division's duty:

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"to inspect at regular intervals all licensed child welfare agencies within the State, to include all family boarding homes, foster family homes, and family day care homes used by such agencies. . . . "
The above-mentioned licensing provision, as of July 1, 1964 (see Georgia Code Ann. 99-214 [s]), will have criminal sanctions inasmuch as operation of a "child welfare agency" after such date is declared to be a misdemeanor, with each day of illegal operation being a separate offense punishable by fine of not less than $50.00 nor more than $200.00 (Georgia Code Ann. 99-214 [q]).
It is, therefore, quite obvious that the only real question to be answered in the instant situation concerning Mr. and Mrs. Brown is whether under the relevant statutory definitions (e.g., 99-203 [r]) their furnishing of shelter, maintenance, and other services to twelve children under seventeen years of age causes them to be operating a "child welfare agency." (It is no doubt superfluous to point out that it is the application of the presently existing facts to the statutory definitions which control and not Mrs. Brown's "personal opinion" as to whether or not she is operating a children's home nor her future intentions relating to legal adoption of the children and/or accepting any more children.)
In determining whether or not the operating by Mr. and Mrs. Brown of what is commonly known as the "Goodwill Home" constitutes operation of a "child welfare agency" it must first be noted that Georgia Code Ann. 99-203 (r), in defining the term, includes both "child-caring institutions" and "family boarding homes," within its scope. Subsequent subparagraphs of the same code section ( 99-203) then go on to define these two terms as follows :
"(s) 'Child-caring institution' shall mean and include any institution, society, agency or facility, whether incorporated or not, which either primarily or incidentally provides full-time care for children under 17 years of age outside of their own homes, subject to exceptions as may be provided in rules and regulations of the board." (See Georgia Code Ann. 99-203 [s]).
"(v) 'Family boarding home' shall mean a home operated by any person who receives therein for pay three or more children under 17 years of age, who are not related to such person and whose parents or guardians are residents of the same house, for supervision, care, lodging and maintenance with or without transfer of custody."
It would seem that in the absence of any rules or regulations of the State Board for Children and Youth to the contrary, that the "Goodwill Home" operated by Mr. and Mrs. Brown is clearly within the definition of "child-caring institution" provided by 99-203 (s). There are twelve children under the age of seventeen being cared for a fulltime basis by "Goodwill Home." Furthermore, even if the home should be deemed not to be an "institution," (and note that it has previously been referred to as an institution by the Browns themselves, as well as by their attorney, Mr. Jay; noting also that the word is defined in

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Black's Law Dictionary as an "establishment" or even a "place"), it would, in my opinion, clearly be a "facility." This latter term [facility] is defined in Webster's Third New International Dictionary (1961), as
"5 (a) Something that promotes the ease of any action, operation, transaction or course of conduct, (b) something that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end, ..." (Emphasis added)
and, it is also worthy of mention that in connection with its use in the term "group care facility" in 99-203 (h) the word is employed as meaning "a place." For this reason, and in view of the generally broad purposes of the "Children and Youth Act" of providing for "enforcement of standards for social services and facilities for children which supplement or substitute for parental care and supervision ... " [See Georgia Code Ann. 99-203 (f)], I think it highly likely that the shelter and other services provided by Mr. and Mrs. Brown for children not their own and not legally adopted by them, would be construed as the operation of an "institution" and/or "facility" providing full time care for children.
It would also seem clear that should Mr. and Mrs. Brown receive payments for their supervision, care, lodging and maintenance of any three or more of the twelve children, the "Goodwill Home" would also be a "family boarding home" as defined in 99-203 (v) .
In view of the foregoing, I believe that the "shelter" and other child services provided by Mr. and Mrs. Otis Brown through what is commonly known as the "Goodwill Home" clearly constitute the operation of a "child welfare agency" on their part, which is subject to licensing and inspection under the Children and Youth Act of 1963.
February 10, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting an official opinion concerning the tax situs of personal property owned by members of the Armed Forces of the United States who are residents of the State of Georgia temporarily stationed outside the Continental United States.
Georgia Code Ann. 92-102, provides:
"For the purposes of taxation, 'personal property' shall be construed to include goods, chattels, monies, credits and effects, whatsoever they may be; ships, boats, and vessels, whether at home or abroad, and capital invested therein; . . ."
The tax situs of personal property is the County and State where the owner of that property resides unless the personal property is connected with some business enterprise that is situated more or less

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permanently in a different County or State. Ops. Att'y Gen. 478 (196061).
Our courts have repeatedly held that personal property such as private automobiles and private household goods and other effects of a similar nature are taxable in the County where the owner has his legal residence. Collins v. Mills, 198 Ga. 18, 30 S.E.2d 866 (1944) ; Wright v. Mayor and. Council, 140 Ga. 231, 78 S.E. 839 (1913) ; St. Simons Transit Co. v. Mayor and Council, 141 Ga. 477, 81 S.E. 199 (1914).
The Soldiers' and Sailors' Civil Relief Act which is generally relied upon by members of the Armed Forces in matters concerning taxation of their personal property, states that a service man shall not be taxed where he is temporarily stationed and it is intended that he shall pay his taxes in his home state. The Soldiers' and Sailors' Civil Relief Act, because of the residency of the men in question, would have no application insofar as tax relief would be concerned.
February 10, 1964
MARRIAGE
You request information regarding the issuance of marriage licenses and the performance of marriage in the State of Georgia.
There are three (3) essential elements necessary to constitute a valid marriage in Georgia. These are:
1. Parties able to contract. 2. An actual contract. 3. Consummation according to law.
You can see from the above that the parties must be competent and have the legal capacity to enter into a marital status; they must consent to the marriage; and the marriage must be celebrated in the form required by law. If the particular marriage does not satisfy all of these requirements, it is void or voidable, according to the seriousness of the defect.
Under the provisions of 53-101 and 53-102 of the Georgia Code Annotated, it is provided that:
"To be able to contract marriage, a person must be of sound mind; if a male, at least eighteen years of age, and if a female, at least sixteen years; and laboring under none of the following disabilities, viz:
1. Previous marriage undissolved. 2. Nearness of relationship by blood or marriage. 3. Impotency."
Both the male and female, at the time of application for a marriage license, must furnish the ordinary with documentary evidence of proof

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of age in the form of a birth certificate, baptismal certificate or driver's license. It should be noted that the age limitations contained in the provisions of 53-102 of the Code do not apply upon proof of pregnancy on the part of the female being presented to the ordinary, in which case the parties may contract marriage regardless of age.
In regard to your specific question, "Is a blood test for venereal disease a requirement for a license," I am pleased to call your attention to 53-215 through 53-219 of the Georgia Code Annotated, which provide that every person, both male and female, on whose behalf application for a marriage license is made, must present to the ordinary a certificate signed by a licensed physician or osteopath that the applicant has been given an examination, including a standard serologic test for syphilis, and that in the opinion of such physician, the applicant is not infected with syphilis, or if so infected, is not in a state of that disease which is or may become communicable.
In response to your next question, "What is the legal marriage age without parental consent; with parental consent," I am pleased to call your attention to 53-204 through 53-207 of the Code of Georgia Annotated. These sections provide that parties twenty-one (21) years of age or older can obtain a marriage license immediately upon application therefor. If the parties are under twenty-one (21), notice of application must be posted for five (5) days before issuance of such license, except that where the parents or guardian of the female appear in person before the ordinary and consent in writing to the issuance of the license, the posting may be dispensed with. If the female in question is under eighteen (18) years of age, the written consent of the parents, or guardian, as the case might be, must be obtained or the license cannot issue; except in any case where the proposed wife is pregnant and executes an affidavit to the fact that she is pregnant, in which case the marriage license may be issued regardless of the age of either party.
In answering your next question, "What persons of designated authority may perform a marriage in Georgia," the applicable law is found in 53-201 and 53-211. of the Georgia Code Annotated. These sections provide that marriage licenses shall be directed to, and marriages performed by:
1. Any judge.
2. A justice of the peace.
3. A minister of the Gospel, or
4. Upon request, the ordinary may direct the marriage license to any Jewish minister or other person of any religious society or sect authorized by the rules of such society to perform the marriage ceremony.
In answer to your final question in which you ask, "Is a commonlaw marriage valid in Georgia, and if so, is a blood test a prerequisite before such a marriage can take place," this is to advise that Georgia recognizes common-law marriages. Neither a ceremony nor a license is a necessary element of a valid marriage in Georgia. A marriage consummated without a ceremony or a license is known as a com-

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mon-law marriage, and while valid, is not looked upon with favor. In the case of Hayes, et al., v. Hay, Admr., 92 Ga. App. 88 (1955), the Court said in part:
"All that is required to establish factum of common-law marriage is that parties able to contract marriage enter into an agreement per verba de presenti and consummate that agreement by cohabitation."
Such a marriage must be between persons who are otherwise able to contract a valid marriage in Georgia, and who actually intend to or hold themselves out to be husband and wife. A common-law marriage is sometimes difficult to establish, especially when questions of inheritance are involved or the legitimacy of children is a question. You can readily see from the above-cited case that a blood test would not be a requirement before a common-law marriage could be considered valid.
February 11, 1964
OPINION TO THE COMPTROLLER GENERAL
This is in reply to your letter advising that a private company engaged in the business of maintaining a cemetery and selling cemetery lots gives to each purchaser a supplemental written agreement to the effect that if any one or more of purchaser's unmarried children between the ages of one and nineteen die, then the cemetery company will furnish without cost such space or spaces for interment of said deceased child or children, provided that at that time no installment payments on the lot purchase agreement are in arrears. You have requested my official opinion as to whether a contract of this type is insurance and whether or not such a contract may be lawfully made by a concern which is not licensed to engage in the life insurance business.
Georgia Code Ann. 56-102 provides:
"Insurance is a contract which is an integral part of a plan for distributing individual losses whereby one undertakes to indemnify another to pay a specified amount or benefits upon determinable contingencies." Georgia Code Ann. 56-2501 provides :
"A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the continuance of whose life the insured has an insurable interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares or merchandise or other things of value, and whether the cost of value of the undertaking on the part of the insurer be more or less than the consideration flowing to him."

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One of the early Georgia decisions on the question of what constitutes life insurance was the case of Benevolent Burial Ass'n v. Harrison, 181 Ga. 230 (1935). In that case the association issued stock certificates after the purchaser signed the following agreement:
"We, the above named, do hereby make application for one share of stock in the Benevolent Burial Association, Inc. We have paid the amount of $1.75. Each share of stock entitles the holder or any member of his immediate family to a Christain burial of $100, the names of whom are incorporated in this application. Each share of stock is to be paid as follows: $1.75 with application; monthly installments of 50 cents per share.
"Salesman Richard Roe, Signed John Doe."
If payments were kept up for fifteen years, the holder was entitled to a paid-up certificate. The stock certificate issued did not state that the holder was entitled to anything; however, the charter of the association provided that the holder was entitled to "a Christian burial" of the value of $100 upon the death of the owner or a member of his immediate family if the 50 per month assessments were not in arrears. The court held this to be in substance and effect a contract of life insurance, and stated the following:
"Whether or not a contract is one of insurance is to be determined by its purpose, effect, contents, and import, and not necessarily by the terminology used, and even though it contains declarations to the contrary? -citing Southern Surety Co. v. Austin, (Tex. Civ. App.), 17 S.W. (2d) 774, 776; Allin v. Motorists Alliance, 234 Ky. 714 (29 S.W. (2d) 19, 23, 71 A.L. R. 688). 'Nor is it essential that loss, damage, or expense indemnified against necessarily be paid to the contractee: It may constitute insurance if it be for his benefit, and a contract on which he, in case of a breach thereof, may assert a cause of action'-citing note in 63 A. L. R. 715. State ex rei. Landis v. DeWitt C. Jones Co., 108 Fla. 613 (147 So. 230), Quoting from National Auto Service Cor. v. State, (Tex. Civ. App.) 55 S.W. (2d) 209. The business which the company is actually carrying on, and not the mere form of its organization, is the test for determining whether it is an insurance company within the the law applicable to such companies. State ex rei. Reece v. Stout, 17 Tenn. App. 10 (65 S.W. (2d) 827) ." The court concluded:
"If one of the contracts, when construed with the charter, by-laws, and the conduct of the defendant, would, in case of a death to which the contract was applicable, entitle the holder to demand of the defendant mortuary service or merchandise to an amount not exceeding the sum actually paid in by the holder, the contract would contain no element of insurance and the defendant in issuing such contracts would not be engaged in the insurance business. If on the other hand the contract should be construed as entitling the holder to a funeral benefit of the value of $100.00 at the death of any person covered

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thereby, regardless of whether the certificate has been fully paid up, and regardless of the amount paid by the holder before the death, provided only such payments shall have been regularly made before the occurrence of such event, the contract would then be in substance and effect a contract of life insurance, and the company in issuing the same would be engaged in the life-insurance business. In such case it would be immaterial that the benefit was paid in mortuary service or merchandise and not in money." 181 Ga. at 238, 239 (1935).
This case was decided in 1935 and at that time the Code of 1933 56-901, provided:
"A life insurance policy is a contract by which the insurer, for a stipulated sum, engages to pay a certain amount of money if another shall die within the time limited by the policy. The life may be that of the insured or of another in the continuance of whose life the insured has an interest."
Following the decision in the Benevolent Burial Association case the same conclusion was reached in the cases of Clark v. Harrison, 182 Ga. 56 (1936), and South Georgia Funeral Homes Inc. v. Harrison, 182 Ga. 60 (1936). In the South Georgia Funeral Homes case, the court held that an option contract wherein the optionor agreed to sell certain funeral merchandise in the consideration of the sum of $12 per year, payable $3.00 down and $1.00 per month, or all at one time, was a contract of life insurance. The agreement was to furnish the merchandise at a special price should the optionee exercise the option.
Another case, South Georgia Funeral Homes, Inc., v. Harrison, 183 Ga. 379 (1936), held that an agreement whereby the party of the first part agrees to perform services of undertaker upon the death of the party of the second part or any member of his family, for the consideration of $50, did not constitute a contract of life insurance. However, the case appears in line with the other cases cited since the agreement allowed the buyer to pay $6.00 down and the balance payable in installments with the execution of a note, a part of the contract providing that upon default in the payments the purchaser would be entitled to services under the contract to the amount actually paid thereon. The court stated:
"It has been said that life insurance in its pure form is where the members pay premiums which when invested would, if the member lived exactly the average life, produce the sum agreed to be paid. Those who do not reach the expected age gain, those who exceed the age lose, but in the long run there can be either gain or loss. Eckersley v. Federal Life Assurance, Co., 2 Ont. 1274, 19 Ont. 507."
The court further stated:
"It will thus be seen that no definite line of demarcation can be arbitrarily drawn, but each contract must be construed unto itself, together with evidence dehors the contract itself, in order to ascertain whether the particular contract under con-

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sideration is one of life insurance or otherwise. We think it can safety be said, however, that a contract of life insurance must contain an element of risk in so far as the particular individual contract is concerned ... While it is not always controlling that a contract does not on its face purport to be one of life insurance, such fact is controlling if nothing to the contrary is shown."
The court held that since there was nothing in the record to show that any element of risk was involved in the contracts, they were not contracts of insurance.
In the case of Harrison v. Tanner-Poindexter Co., 178 Ga. 678, (1938), the court held that a contract for the sale of funeral merchandise was a contract of life insurance where the agreement was to sell for a stated amount payable in installments with any balance to be paid by the purchaser's estate should he die before paying the full purchase price. This is a reversal of the decisions previously handed down by the Supreme Court and particularly the case of South Georgia Funeral Homes Inc. v. Harrison, 183 Ga. 379 (1936), which held there must be an element of risk. It was based solely on a change in the law with regard to the definition of a contract of life insurance. The Legislature, in 1937, passed an Act (Georgia Laws 1937, p. 702) providing:
"A contract of life insurance is one whereby the insurer, for a consideration, assumes an obligation to be performed upon the death of the insured, or upon the death of another in the continuance of whose life the insured has an interest, whether such obligation be one to pay a sum of money, or to perform services, or to furnish goods, wares or merchandise or other thing of value, and whether the cost or value of the undertaking on the part of the insurer be more or less than the consideration flowing to him."
This Act further provided that any person, firm or corporation who should write contracts of insurance before complying with the law would be guilty of a misdemeanor. The court held that although the merchandise could be delivered at any time upon the payment of a specified amount, the burial of the dead was the main object of the purchase, and was essential to complete performance of the company's obligation, and that the goods were desired only in connection with the funeral service which in natural course of events must follow death, as no intent to bury the living could be attributed to the parties. It should be noted that the change in the law referred to in this case regarding the definition of a contract of life insurance established the definition as it exists today and as set out in the beginning of this opinion.
In the case of Parker v. Westview Cemetery Ass'n, 195 Ga. 237 (1943), the Commissioner sought an injunction to enjoin the defendant cemetery association from continuing to enter into contracts with purchasers of cemetery lots or grave spaces on the theory that they were contracts of life insurance, which the association was not authorized to issue. Under the agreement the grave spaces were sold on

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an installment plan with the provision that in case of default in payments the seller had the right to declare the contract ended, and all payments made would be retained by the seller as its liquidated damages. In connection with the agreement and as a part of the contract of sale, the cemetery association issued to each purchaser an additional writing called a "protective certificate" which provided in substance that in the event of the death of the buyer before the purchase price of any lot had been paid in full, and if the buyer was not in default in his payments, the association would convey to the designated beneficiary, without further payment or consideration, one or more of the graves contracted for, depending on the percentage of the total amount that had been paid before death of the buyer. The Commissioner alleged that part of the cost of the agreed price on the contract was for payment of the cost of maintaining the protective certificate; that is to say, a premium sufficient to protect the association against the risk assumed as evidenced by the protective certificate and contingent upon the death of the buyer. The association introduced evidence to show that it had made arrangements with a duly licensed life insurance company to provide for the insuring of the life of each person holding one of their contracts upon which there was an unpaid balance, and under the terms of the policy the life insurance company would pay the unpaid balance at the time of death of any purchaser. The injunction was therefore denied, since the association indicated that it would issue no further protective certificates. On appeal the judgment of the lower court was affirmed. The court did not pass on whether or not the protective certificate constituted a contract of life insurance, and, although the association denied that the certificates were, they must have felt that they would be construed by the court as such, since they agreed to issue no more of them, and instead made arrangements with a duly licensed life insurance company to accomplish its purpose.
Based upon the facts in the Westview Cemetery Association case it appears that the supplemental agreement referred to in your letter is very similar to the protective certificate at issue in that case. In construing such an agreement in the light of all of the decisions above referred to as well as the applicable definitions set out in the law, it certainly appears that it is in substance and effect a contract of life insurance. The cemetery company certainly assumes an obligation to be performed upon the death of a person in the continuance of whose life the purchaser of a lot has an insurable interest, and the obligation is to furnish a thing of v:alue-burial spaces for the purchaser's unmarried children should any die between the ages of one and nineteen. The only other element needed to place it squarely within the definition of a contract of life insurance is consideration flowing to the cemetery company. It cannot be denied that the agreement to furnish the additional burial spaces is in consideration of the agreement of the purchaser to purchase a cemetery lot at an agreed price. Although it is indicated that no cost is charged for the
supplemental agreement, it is reasonable to assume that its cost is
a part of the purchase price agreed to by the purchaser for the ceme-
tery lot; that is to say, a premium sufficient to protect the cemetery
company against the risk assumed as evidenced by the supplemental

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agreement and contingent upon the death of an unmarried child between the ages of one and nineteen. This certainly fulfills the requirement of the definition with reference to the value of the consideration, "and whether the cost or value of the undertaking on the part of the insurer be more or less than the consideration flowing to him."
The facts here even fit the rule established in the Benevolent Burial Association case herein referred to, in that the contract entitles the holder to the benefit at the death of a person covered thereby, regardless of the amount paid before the death and regardless of whether the contract had been fully paid, provided only such payments shall have been regularly made before the occurrence of such event. There is also an element of risk involved here, which is another rule established in the Harrison Funeral Home case, the risk being whether or not an unmarried child dies between the ages of one and nineteen. And finally, the decision in the Tanner-Poindexter case which held that the purchase of merchandise which concerned the burial of the dead and was essential to complete performance of the company's obligation amounted to a life insurance contract, can be applied to the case at hand since that decision was based upon a change in the law with regard to the definition of a contract of life insurance, a definition still in force. Although that case apparently eliminated the requirement of an element of risk as essential to a contract of life insurance, the supplemental agreement we are concerned with does in fact contain an element of risk and, in addition, the burial of the dead is essential to complete performance of the cemetery company's obligation.
It therefore is my opinion that a contract of the type you described is in substance and effect a contract of life insurance and cannot be lawfully made by a concern not licensed to engage in the life insurance business. Nor can it be lawfully made by a duly licensed life insurance company, in view of Georgia Code Ann. 569901, which provides:
"It shall unlawful for any insurer to provide in a policy or contract of insurance that the face amount thereof, or any loss or indemnity which may accrue thereunder, shall be payable in anything other than legal tender of the United States and of this State to the beneficiary named therein or the legal representative of such insured; and any provision to the contrary shall be null and void: Provided, this shall not prevent property insurance policies from including an option to the insurer authorizing it to repair the damage incurred or paying the debtor the dollar amount thereof."
Section 56-9907 provides:
"Any insurer, or any officer or agent thereof, issuing or delivering to any person in this State any policy in violation of any provision of this Title shall be guilty of a misdemeanor."
You state that you have had a similar problem called to your attention which you requested that my opinion cover also. You enclosed a copy of a written contract used by Greenleaf College, which

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they call a "guaranteed savings plan," whereby it is agreed by a student and a sponsor to make regular monthly deposits into an unincorporated non-trusted fund administered by the college, for the purpose of accumulating funds and earnings and of participating in the security benefits offered by the agreement which is signed by the president of Greenleaf College as well as by the student and the sponsor. Paragraph II of the agreement sets out a benefit as follows:
"A 100% Tuition Grant from Greenleaf to any student enrolled under this plan should enrolled student's Sponsor die (from time enrolled until student's scheduled starting date) with all monies paid in refunded."
The last paragraph of the agreement provides:
"I also understand that should I fail to make regular advance monthly deposits that benefits of Tuition Grants outlined in Paragraph II ceases after 30 days elapse from date of last deposit."
It is my opinion, based upon the decisions and statutes outlined above, that the "guaranteed savings plan" used by Greenleaf College constitutes a contract of life insurance. It contains all of the required elements that constitute a contract of life insurance, as set out in this opinion. The college, in consideration of the monthly payments pursuant to the agreement, assumes the obligation of furnishing a 100% tuition grant and refunding all monies paid, to be performed upon the death of the sponsor. Such an obligation is one to pay a sum of money as well as to furnish a thing of value, and it is immaterial whether the cost or value of such an undertaking on the part of the college be more or less than the consideration flowing to it.
February 11, 1964
RESIDENCE
As I understand the facts set out in your letter with respect to your present state of residence, you have been a legal resident of Raleigh, North Carolina, since the date of entering active service in the Army, and at the present time your only contact with the State of Georgia is your annual visit with your wife's family in Thomasville for a period of two weeks in each year. This is definitely not enough to establish a legal residence for you in the State of Georgia.
Section 79-406 of the Georgia Code Annotated provides:
"Change of domicile; intention.-The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
I suggest that the following actions be taken in connection with

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the execution of your intention to change your legal domicile to the State of Georgia:
1. Have your official Army records with respect to legal residence changed to Thomasville, Georgia.
2. Establish some specific address by the purchase, lease, or acquiring of some right in property in Georgia; or by designating your specifc legal residence as that of the family of your wife.
3. Register and vote in Georgia. 4. Pay income tax in Georgia. 5. Obtain your automobile registration tags in Georgia. 6. Establish church and club or other social activity memberships and relationships that would indicate Georgia as your legal residence. 7. In the accomplishment of the above numbered items, make a declaration of an intention to establish your legal domicile in Georgia to the ordinary of the county in which you propose to establish a legal domicile.
February 14, 1964
OPINION TO THE STATE HIGHWAY DEPARTMENT
I am in receipt of your letter in which you requested my opinion concerning the proper payee in a case where a Workmen's Compensation award has been rendered against the State Highway Department in favor of one of its employees, where the State Highway Depart-
ment has been directed by the Workmen's Compensation Board to
pay medical and hospital expenses which have been incurred, and where some or all of those expenses had been previously paid on behalf of the employee by the Travelers Insurance Company through the State Employees Health Insurance Program.
It is my opinion that the order of the Board of Workmen's Compensation will be complied with if you reimburse the State Employees Health Insurance Fund for any moneys paid by Travelers Insurance Company on behalf of the claimant employee for medical and hospital expenses and that you are not otherwise prohibited from doing so. Any additional medical and hospital expenses incurred by
the claimant employee and paid for by him may be reimbursed to
him directly. Further, it would be proper and in compliance with the order for the State Highway Department to pay directly to the hospital and/or attending physicians amounts due them on account of services in connection with the employee's compensable injury where neither the employee nor Travelers Insurance Company, acting for the State Employees Health Insurance Fund, has paid for such services.
You cited Article VII, Section I, Paragraph I of the Constitution of the State of Georgia (Georgia Code Ann. 2,-5402) and cases

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noted thereunder, as possible legal impediments to payments as hereinabove described. That provision reads in part as follows: '
"2-5402. Taxing power limited.-1. The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association...."
Since the reimbursement contemplated in this case is to another agency of the State, the State Employees Health Insurance Fund, which is administered by the State Merit System, and partially financed and supported with State funds, I do not believe that it would be prohibited by the constitutional provisions set forth above. Moreover, my understanding of the arrangement between the State Employees Health Insurance Fund and the Travelers Insurance Company is such that Travelers in effect is engaged in helping administer hospital and medical insurance for State employees and that the Fund, and not Travelers, bears the ultimate burden of an insurance loss in this instance. Thus, Travelers itself, a private insurance company, would not be the recipient of a prohibited donation or gratuity in the circumstances outlined above.
Finally, there arises the question of why a department of the State should reimburse anyone other than the employee for medical expenses already paid. The policy pursuant to which employees are covered by the State Employees Health Insurance Plan provides that there shall be excluded from coverage "charges that the employee would not be required to pay if there were no insurance." Since an employee would not be required to pay medical charges where the employer has been ordered to do so by the Workmen's Compensation Board, it is appropriate for the employer to reimburse the Fund for any such charges already paid.
February 14, 1964
GRACEWOOD STATE SCHOOL AND HOSPITAL
You ask whether or not you may be considered a resident of the State of Georgia for the purpose of admitting your daughter to the Gracewood State School and Hospital.
In order to arrive at the answer to your question, it is necessary first to consider the legal meaning and effect of the words "resident" and "legal resident." The connotation of the words "resident" means one who lives in a particular place; it has no necessary connection with the concept of performance or intent to remain indefinitely. "Legal resident," on the other hand, is synonymous with domiciliary. A domiciliary is one whose permanent home is in a particular place, known as his domicile. It actually means one's fixed and permanent place of abode, to which, when one is absent therefrom, he intends to return. One cannot change his domicile by merely assuming residence in a new location without the intention to remain there. There must be an actual physical presence in the new location, and an intent upon the party concerned to remain there for an indefinite period.

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The question of what place shall be considered a domicile of an individual, then, is one of fact rather than of law. Section 79-401 of the Georgia Code Annotated provides that:
"79-401. (2181) Place of.-The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this State. If he has no family, or they do not reside in this State, the place where such person shall generally lodge shall be considered his domicile. (Act 1838, Cobb, 530.)"
Sections 79-404 and 79-406 of the Georgia Code Annotated provide that:
"79-404. (2184) Minors.-The domicile of every minor shall be that of his father, if alive, unless such father shall have voluntarily relinquished his parental authority to some other person. In such event the domicile of the minor shall be that of the person to whom parental authority has been relinquished, or, his master, if an apprentice, or his employer; if neither master nor employer, then the place of his own choice; if the father shall be dead, then the domicile of the minor shall be that of his guardian, if he has one in this State; if no guardian, then of his mother, if alive; if no mother, then of his employer; if no employer, then of his own choice. The domicile of an illegitimate child shall be that of his mother."
"79-406. (2186) Change of domicile; intention.-The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining. A declaration of an intention to change the domicile is ineffectual for that purpose until some act is done in execution of the intention."
It appears from the information enclosed in your letter that you have never resided in the State of Georgia; therefore, as you have not acquired a domicile by residing in Georgia, or shown an intent to remain here indefinitely, you may not legally be classified as a resident of this State.
I would also like to call your attention to the fact that members of the armed forces never lose their domicile merely by joining the service. From the tone of your letter, I assume that you have not maintained a fixed intention to remove your legal residence to the State of Georgia; nor have you acted accordingly. If this is the case, then there is no way that you could be construed to be a legal resident of the State of Georgia at the present time.
In the case of Mayo v. Ivan Allen- Marshall Company, 51 Ga. App. 25 (1955), it was held that domicile or legal residence exists when there has been a concurrence of an actual residence and an intention to remain there permanently. Such an intention may be proved by acts. Therefore, the place where a person is engaged in work, is stationed, or temporarily lives is not necessarily his legal residence, since legal residence is controlled by the intention of such person. Also in this case see Hardeman v. Hardeman, 179 Ga. 34 (1934) ;

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Avery v. Bower, 170 Ga. 202 (1930); and Patterson v. Patterson, 208 Ga. 7 (1951).
As you know, the Gracewood State School and Hospital is dedicated to providing a happy and comfortable institutional life for resident mentally retarded children, the present patient population numbering over fourteen hundred, and there being quite a long waiting list. I would also like to call your particular attention to the current admission policies to the School. They are as follows:
1. The patient must be a resident of the State of Georgia. (Emphasis supplied)
2. The patient must be a mental defective within the meaning of the term ("Injury or disease so pronounced that they are unable to care for themselves and manage their affairs with ordinary prudence, and that they constitute a menace to the happiness of themselves or others in the community; and yet who are not insane or of unsound mind.")
3. The individual must be between the ages of six and eighteen; however, exceptions are made at the discretion of the School.
4. The patient or others legally responsible for the support of the patient must be willing to have an investigation made of financial status. Those who are able are required to pay all or a portion of the cost of care of said patient; however, no differentation in admission or care results from ability or inability to assume financial responsibility.
If you should be able to establish your legal residence as the State of Georgia, then the following priorities for admission would apply to your particular case, and I feel that the Director of the Gracewood State School and Hospital would then make all efforts possible for you to expedite your daughter's admission to the School, to wit:
1. The presence of complicating medical problems. 2. History of inability to make social adjustment. 3. Seniority on the waiting list. 4. Availability of resources in home community. 5. Presence of other children who are adversely affected. 6. Availability of space in the Institution for the particular type of child.
February 17, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting a ruling pertaining to excise stamps under the provisions of the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," as amended

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by the 1964 General Assembly of Georgia. You asked specifically whether or not it would be permissible to use excise stamps that recite a tax has been paid on a quantity of beverage rather than the amount of tax paid. The General Assembly of Georgia, at the 1964 Session, passed a bill increasing the tax on alcoholic beverages and provided with reference to the stamps that the State Revenue Commissioner should "prescribe suitable stamps in proper denominations denoting the payment of taxes imposed by this Act. . . ."
The answer to your question depends upon an interpretation of the word "denomination." Webster's New International Dictionary defines denomination as follows: "denomination. 1. Act of denominating, or naming. 2. That by which anything is denominated or styled; an appellation; a name, designation, or title; esp., a general name for a class of like individuals; a category. 3. A class, or society or individuals, called by the same name; a sect; as, a denomination of Christians. 4. One of a series of related units or values denoted by special names; as, the denominations of long measure (inch, foot, etc.) ; the denominations of United States money ($1, $2, $5, etc.)." Webster's Third New International Dictionary, Unabridged Edition, refers to denomination as follows: "denomination.... 4. A value or size, namely one of a particular series of values or sizes (as of monetary issues, stamps, units of weight or measure) ...."
The use of excise stamps which recite the quantity and that a tax has been paid on that quantity would, based on the above authorities, in my opinion, comply completely with the provisions of this Act. It is my opinion, that an excise stamp for alcoholic beverages that said, "one quart tax paid" or "one-half pint tax paid," in fact, refers to the denomination in size as to which the tax has been paid and the Act requires no more than this.
February 17, 1964
GUARDIANS
This will acknowledge receipt of your letter requesting an opinion with reference to the appointment of a legal guardian for your mother, who is a resident of this State.
A guardian is defined as a person lawfully invested with the power and charged with the duty of taking care of the person or property, or both, of another person, who, for some peculiarity of status, or defect of age, understanding or self-control, is considered incapable of administering his own affairs. Black's Law Dictionary (4th ed. 1951)
Under the provisions of Title 49 of the Georgia Code Annotated, the county ordinary has exclusive jurisdiction in matters relating to the appointment, supervision and discharge of guardianship. In general, the ordinary has jurisdiction to appoint guardians for those persons who are incapable of managing their estates as a result of

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mental or physical incompetency. Under the provisiOns of Georgia Code Ann. 49-601, there is a specific reference to insane persons, deaf and dumb persons when incapable of managing their estates, habitual drunkards, and persons imbecile from old age or other causes and incapable of managing their estates.
Except for minors and veterans, the classifications given above are the only persons for whom there is any authority to appoint a guardian. The authority of the ordinary to appoint a guardian for a person of legal age is dependent upon a previous legal determination of incapacity of the person to manage his affairs. It is not sufficient merely to allege in an application for guardianship that the person is in one of the classes of incompetents for whom the ordinary is authorized to appoint a guardian. There must be a legal showing that the person for whom the guardianship is sought has been determined by proper legal processes to be in a status of incapacity to manage his affairs. The only basis upon which a guardian may be appointed for a person of legal age is a determination by a legallyconstituted commission of his incapacity to manage his own affairs in the legally-prescribed manner.
In specific reference to the above-quoted Code section, the Supreme Court of Georgia in the cases of Calhoun v. Moseley, 114 Ga. 641 (1902), and Spooner v. Spooner, 148 Ga. 612(1) (1918), held that where a person, though very weak in mind, has enough capacity to understand the nature of a particular cause of action and is well enough to desire to bring suit thereon, he should do so without a next friend or guardian. It would seem apparent, therefore, that the court of ordinary would have no authority to name a guardian for a person who is perfectly rational, unless, of course, his condition is also accompanied by some other condition as described in 49-601 of the Georgia Code Annotated quoted above.
In answering your specific inquiry as to the legal procedure for the appointment of a guardian, I am pleased to call your attention to the following requisites to be adhered to in determining one's capacity to manage his estate:
1. Any person may file a verified petition with the ordinary setting forth that another is liable to have a guardian appointed.
2. The filer must give proof of ten (10) days' notice to the three (3) nearest adult relatives who are residents of Georgia, if there are any.
3. The ordinary then issues a commission to two practicing physicians resident in the county, and to the county attorney, or, in his absence, some other attorney appointed by him.
4. The commission is sworn in, and as a body conducts a personal examination of the person for whom guardianship is sought. This commission may hear and examine witnesses on oath if such is determined necessary to determine the subject's condition and capacity to manage his estate.

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5. The commiSsion returns its verdict, which must be a unanimous one, to the ordinary.
6. The ordinary appoints a guardian for said individual, acting upon a unanimous verdict of the commission.
Under the provisions of Georgia Code Ann. 49-611, the guardian of an insane person is authorized to confine his ward or place him in the Milledgeville State Hospital, either for the ward's protection or others. A guardian failing to take this precaution becomes responsible for injuries inflicted upon others by the ward.
February 18, 1964
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether legislative action is needed to authorize the issuance of bonds for the construction of a proposed diagnostic and classification center or a maximum security prison.
The bonds for the above-stated purpose would be issued by the State Penal ~md Rehabilitation Authority (Georgia Laws 1960, p. 892) and would be financed by the issuance of Revenue Bonds as provided in 5 of the Act.
It appears from the Act that the Authority is vested with the responsibility of issuing such bonds and requires no additional authorization from the Legislature to implement such purpose. Section 5 provides it "shall have power and is hereby authorized at one time, or from time to time, to provide by resolution for the issuance of negotiable revenue bonds...." (Emphasis added)
The bonds of the Authority are to be confirmed and validated in accordance with the procedure of the Revenue Certificate Law of 1937, as amended; otherwise, the Authority controls the mechanics of the sale of bonds as provided in 9.
"The authority may sell such bonds in such manner and for such price as it may determine to be for the best interests of the authority."
Section 13 is concerned with the conditions precedent to the issuance of the bonds and makes it evident that action by the Authority is the only prerequisite to the issuance of the bonds.
"Section 13. Conditions precedent to issuance; object of issuance.-Such revenue bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified or required by this Act. In the discretion of the authority, revenue bonds of a single issue may be issued for the purpose of paying the cost of any one or more, including a combination of, projects at any one institution or any number of institutions." (Emphasis added)

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Therefore, I am of the opinion that no action on the part of the Legislature is contemplated or required as a condition precedent to issuing bonds for Authority purposes.
February 19, 1964
MENTAL HEALTH ACT
You ask whether or not a person involuntarily hospitalized under the provisions of the 1960 Mental Health Act may execute a valid and binding warranty deed.
Your attention is directed to 16 of Act 618, Georgia Laws of 1960, page 837, entitled "Observation, Treatment, Etc., of Mentally Ill Persons," which is unofficially codified in 88-1606 of the Georgia Code Annotated, and which provides in part as follows:
"Right to communication and visitation; exercise of civil rights.-(a) Subject to the 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 restriction, 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 adjudicatiqn of incompetence. Consequently, if the patient has not been adjudicated incompetent by virtue of such hospitalization, then he would retain his civil rights as to disposing of property, executing instruments, etc. The Act further provides that if the Superintendent of the Milledgeville State Hospital determines that it is necessary to impose restrictions on said patient for his medical welfare, then he can limit the patient's exercise of civil rights, provided that such reason for the limitation is made a part of the clinical record of the patient.
February 24, 1964
LICENSE FEES
You ask for an opinion as to whether the imposition of a license fee upon practicing lawyers by Rule 1-502 of the Rules governing organization of the Bar, effective January 1, 1964, has invalidated license fees assessed against lawyers by the several municipalities of the State.
Section 92-1909 of the original Code of 1933, taken from an Act of 1927 (Georgia Laws 1927, p. 58), declared:

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"Each and every practitioner of law, medicine, osteopathy,
chiropractic, chiropody, dentistry, and each and every veterinary surgeon, optician, optometrist, masseur, public accountant, or embalmer, and every civil, mechanical, hydraulic, or electrical engineer, or architect, charging for their services as
such, shall pay $15.00, and the validity of their licenses is made contingent upon the payment of the tax herein provided. No municipal corporation or county authority shall levy or collect an additional tax on the professions, businesses, or occupations
enumerated above, which shall be returned to the tax receiver of the county of his residence by any person engaged therein
on the first day of January, and centered by the receiver on the digest of the county."

This provision was carried forward in the General Tax Act of 1935 (Georgia Laws 1935, pp. 11, 13).

So long as this section was the law, it is clear that a municipality
could not impose an additional license tax on lawyers. However, the Act was repealed in 1951 (Georgia Laws 1951, pp. 157, 163).

In 1953, another act was passed (Georgia Laws 1953, p. 207), codified unofficially as Georgia Code Ann. 92-307, which declares as follows:

"No municipal corporation or county authority of this State, notwithstanding any provision in its charter to the con-
trary, shall levy or collect any license, occupation or professional tax upon practitioners of law, medicine, osteopathy,
chiropractic, chiropody, dentistry, optometry, masseur, public accounting, embalming, funeral directors, civil, mechanical,
hydraulic, or electrical engineering or architecture except at the place where any such practitioner shall maintain his principal office: Provided, such levy shall not exceed the levy im-
posed under the laws of the State of Georgia as the same
existed in 1950: Provided, further, that where any such principal office is located within the corporate limits of any municipality, no county authority shall have the power or authority to levy any such tax as to that office."

In City of Atlanta v. Gower et al., 216 Ga. 368 (1960), the Su-

preme Court held, in construing this section, that in the absence of

some other valid general law, the city of Atlanta could not validly

assess a license tax upon attorneys in excess of that in effect in

1950, which at that time was in the amount of $15.00 (under the

Act of 1935). Consequently, a population act purporting to authorize

certain municipalities to lay an annual license tax on attorneys in

the amount of $50.00 per year, held by the Court for reasons im-

material here to be a local law, was declared void as being contrary

to 92-307, supra.



In the absence of an express prohibition, there is nothing to prevent a municipality from levying a license tax on an occupation also
taxed by the State, so long as the municipal tax does not condition the right of the taxpayer to practice his occupation upon payment

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of the tax. Wright & Hill v. Mayor & C. of Atlanta, 54 Ga. 646 (1875), and see Mayor & A. of Savannah v. Hines, 53 Ga. 617 (1875).
However, 92-307 expressly authorizes license taxes upon lawyers by municipalities, not to exceed $15.00; and under the rule that repeals by implication are not favored, Britton v. Bowden, 188 Ga. 806, 811 (1939). I do not believe that the act authorizing organization of the State Bar (Georgia Laws 1963, p. 70) and Rule 1-501 adopted pursuant thereto, should be construed as repealing by implication so much of 92-307 as relates to lawyers.
I have not, in rendering this opinion, undertaken to determine whether the charter of any particular municipality authorizes that municipality to assess such a license tax, as this will vary, depending upon the wording of each charter.
February 25, 1964
OPINION TO THE GOVERNOR
Re: Constitutionality of H.B. No. 779 (Liberty County Industrial Authority)
This letter deals with the constitutionality of H.B. No. 779, which was signed into law by you on February 18, 1964.
In general, the new Act implements an amendment to the Constitution of Georgia ratified November 4, 1958 Georgia Laws 1958, p. 472), creating the "Liberty County Industrial Authority." The Act provides for the appointment and terms of office of the members of the Authority and also sets forth the Authority's powers and duties. My opinion as to the constitutionality of the Act and the reasons therefor are as follows:
OPINION
I believe that H.B. No. 779 is constitutional insofar as and to the extent that it authorizes the "Liberty County Industrial Authority" to undertake various specified activities in connection with or incidental to the development and promotion of "industry" in Liberty County. I have certain reservations, however, as to the constitutionality of the Act's attempted authorization of similar activities on the part of the Authority with respect to commerce, natural resources, vocational training and agriculture. These reservations stem from the fact that the constitutional amendment which H.B. No. 779 is designed to implement, when declaring the purpose for which the Authority was created, does not itself go beyond the promotion and development of "industry." It is, therefore, conceivable that a court might hold the legislative grant of power to the Authority respecting matters of commerce, natural resources, vocational training and agriculture exceeds that permitted by the Constitution.
DISCUSSION
In general the various provisions contained in H.B. No. 779 are clearly authorized either by the amendment to the Constitution of

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the State of Georgia which created the "Liberty County Industrial Authority" (Georgia Laws 1958, p. 472)1, or by Article VII, Section VI, Paragraph I of the State Constitution (Georgia Code Ann. 25901), which authorizes contracts and conveyances between the State or its political subdivisions, and public corporations or authorities.
In 5(b) of the Act, however, the word "project" is defined as the acquisition of lands, properties and improvements for
"development, expansion and promotion of industry, commerce, agriculture, natural resources and vocational training...." (Emphasis added)
Inasmuch as the constitutional amendment cited above states the purpose of the Authority as being
"the developing and promoting for the public good and welfare industry within Liberty County...." (Emphasis added)
There is some possibility that legislative extension of the Authority's activities to fields other than "industry" (especially, for example, to agricultural development) would be held unconstitutional if tested in the courts.
The fact that similar legislation concerning Ware County has been upheld by the Supreme Court of Georgia [see Smith v. State of Georgia, 217 Ga. 94 (1961)] has not been overlooked.
The constitutional amendment upon which the Ware County Act is based, however, expressly includes agricultural, commerce, natural resources and vocational training among the purposes of the Waycross and Ware County Development Authority" (see Georgia Laws 1953, Nov.-Dec. Sess., p. 266), and the constitutional point here under consideration was not at issue in the Ware County litigation.
In concluding, it may be noted that the Act does contain a severability clause and that for this reason even if a court should hold that the Authority may not properly engage in activities designed to further such things as agricultural development (and it is by no means certain that a court would so hold), it would presumably lead only to judicial elimination of the offensive clause or phrase and not to invalidity of the Act in toto. Such a decision, for example, probably would not preclude any subsequent appropriation of monies to the Authority for uses which could be considered as necessary or incidental to the promotion and development of "industry."
1. Such amendment was necessary to except the Liberty County Industrial Authority from the general prohibition imposed by Article VII, Section V, Paragraph I of the Constitution (Georgia Code Ann. 2-5801) on the appropriation of state, county or municipal funds for any non-charitable corporation, company, association, institution or individual.

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February 26, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in response to your letter requesting my opmwn as to how Act No. 535 of the 1964 session of the General Assembly, insofar as it relates to a retail merchant's right to compensation for collecting and remitting the taxes imposed by the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended, should be administered.
Prior to the adoption of Act No. 535, which goes into effect March 1, 1964, a retail merchant was entitled to retain as compensation for collecting, accounting for and remitting sales and use taxes "three per cent (3%) of the amount of tax due and accounted for and remitted" to the State Revenue Commissioner each month. The merchant was allowed to take advantage of this through a deduction on his monthly return.
Under the terms of the Act, the merchant's compensation is reduced to three per cent of the tax due on the first $120,000.00 of his annual taxable sales. By annual is meant "yearly" or "reckoned by the term of a year," Words and Phrases, Annual; Welch v. Board of Education, 247 S.W.2d 536 (Ky. App., 1952). At common law, a "year," in the absence of anything showing a different meaning, was construed to mean a calendar year, Words and Phrases, Year; Fretwell v. McLemore, 52 Ala. 124, 145 (1875). See also Georgia Code Ann. 102-103. From this, I am of the opinion that the compensation afforded by Act 535 is based on the first $120,000.00 of taxable sales occurring in a calendar year, regardless of when they occur within the year.
Since the Act will only be in effect during the last ten months of this calendar year, I am of the further opinion that the basis for computing compensation for collections to be made during those months should be reduced proportionately. In other words, for the balance of the calendar year 1964, a merchant would only be entitled to compensation on his first $100,000.00 of taxable sales.
Nothing said in this opinion should be construed as altering the view, which I have previously expressed, that the legal incidence of the sales tax is on the seller as well as on the purchaser.
February 28, 1964
OPINION TO THE EMPLOYEES RETIREMENT SYSTEM.
You ask my opinion whether the State Employee's Retirement System may entertain an application for a loan secured by a leasehold interest in real estate (expiring in the year 2022) on which is situated a twelve-story building.

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The Act creating the State Employee's Retirement System (Georgia Laws 1949, p. 138) in 7-Management of Funds, sub-section (1), gives the Board of Trustees "full power to invest and reinvest such assets, subject to all the terms, conditions, limitations and restrictions imposed . . . upon domestic life insurance companies in the making and disposing of their investments; . . ."
Chapter 56-10 of the Annotated Code (Georgia Laws 1960, p. 289) pertains to the investments permitted of domestic insurers. Section 56-1022-Mortgage Loans, provides, in part:
"An insurer may invest in:
"(1) Bonds, notes or other evidences of indebtedness, . which are secured by first mortgage or deed of trust or deed to secure debt upon fee simple, unencumbered improved or income-producing real property . . ., included [sic] leasehold estates in such real estate. No such loan . . . shall exceed 75 per cent. of the value of the real property or leasehold securing same....
* * * *
"(b) All loans secured by leasehold must provide for amortization payments on principal at least once in each year in amounts sufficient to completely amortize the loan within a period of four-fifth of the term of the leasehold, inclusive of the term which may be provided by an enforceable option of renewal, but in no event exceeding 35 years."
From the above it seems obvious the General Assembly contemplated loans upon leasehold interests in real estate, and made special reference to, and provisions for, such loans by domestic insurers. The Employees Retirement System, having the same investment powers as domestic insurers, may make such loans (so long as the limitations of 56-1022 (1) (b) are observed), should the Board so desire.
March 2, 1964
OPINION TO THE GOVERNOR
This will acknowledge receipt of your letter requesting my official opinion as to the constitutionality of HB 1147, enacted by the 1964 General Assembly just adjourned.
The bill in question amends the Alcoholic Beverage Control Act of 1938 (Georgia Laws 1937-38 Ex. Sess., p. 103; Georgia Code Ann. Chap. 58-10), by adding thereto a new section containing five (5) subsections, which prescribe a procedure for the legalization of "mixed drinks" in certain counties of the state, and provides a comprehensive licensing scheme therefor. The bill is applicable only in counties containing a population of 40,000 or over according to the 1960 or any future census (and in municipalities within such coun-

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ties), and in any event, only in those counties where the sale of alcoholic beverages has been legalized by referendum under the existing local option law, Georgia Code Ann. 58-1002 et seq. The Act makes provision whereby such counties and municipalities therein may elect to avail themselves of the Act's coverage.
While your request does not refer to any specific constitutional provision, I am of the opinion that the only aspect in which HB 1147 might be considered questionable concerns Ga. Const. art. I, IV, para. I (Georgia Code Ann. 2-401), declaring that "no special law shall be enacted in any case for which provision has been made by existing general law," it being undisputed that heretofore, the sale of alcoholic beverages in unsealed containers was illegal. Georgia Code Ann. 58-1026; Raines v. State, 96 Ga. App. 727 (1957).
In approaching this problem, it can not be stated too strongly that I am here concerned solely with issues of law, for the question as to the "wisdom, policy or expediency of a law" are matters purely of legislative deliberation and cognizance," and are not for consideration either by me or by the courts. Franklin v. Harper, 205 Ga. 779, 792 (1949). Arguments predicated upon consideration of morality, immorality, or economic consequences must be addressed to the General Assembly, the only body authorized under our separation-ofpowers form of government to resolve such questions.
Secondly, when questions of constitutionality are involved, the Supreme Court is careful to admonish that, "Every presumption will be made in favor of the constitutionality of an act of the legislature," Davis v. Board of Education, 203 Ga. 44 (1947), and a statute will not be declared void unless its inconsistency with the Constitution is "clear and palpable." Cooper v. Rollins, 152 Ga. 588 (1) (1922).
Under decisions interpreting the constitutional clause in question, acts creating classifications based upon population, commonly referred to as "population acts," must meet two requirements in order to be upheld: First, the population formula must not be so hedged in with provisions, restrictions and limitations as to be in effect a special law, designed to affect only one county, although purporting on its fact to be a general law. Stewart v. Ande,rson, 140 Ga. 31, 33 (1913) ; Tift v. Bush, 209 Ga. 769 (1953). The most frequent example of this type law is one which establishes a population floor and ceiling separated by only a small number, such as "not less than 15,000 and not more than 15,003." As a corollary, the population formula must be so worded as to let in counties subsequently coming within th formula as well as to let out counties subsequently falling outside the formula. Murphy v. West, 205 Ga. 116 (1949); City of Atlanta v. Gower, 216 Ga. 368, 371 (1960) ; Barge v. Camp, 209 Ga. 38 (1952).
Second, the basis of classification (i.e., population "must have some reasonable relation to the subject matter of the law,'' and must "furnish a legitimate ground for differentiation." City of Atlanta v. Gower, supra.
With respect to the first requirement above-mentioned, it is clear beyond doubt that HB 1147 withstands attack. The Act applies to

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any county containing 40,000 or more persons. The Act is not hedged about with a closely-circumscribed floor and ceiling so as to apply to only one or two counties. Moreover, it is so worded as to let in or out counties which under a future census come within or without, respectively, the population formula.
With respect to the second requirement for constitutionality set forth above, I am equally of the opinion that the General Assembly can not be said to have exceeded its authority in concluding that population affords a legitimate basis for differentiation as concerns the subject matter of mixed drinks. In reaching this conclusion, it is not necessary that I agree with the legislative judgment, for the judicial function precludes de novo review here. It is enough for me that the Supreme Court consistently has recognized that differences in population among the various political subdivisions of the state present recognizable differences in the problems involving the regulation of businesses, occupations and other such activities. Cooper v. Rollins, 152 Ga. 588 (1922); Nichols v. Pirkle, 202 Ga. 372 (1947); Camp v. State, 171 Ga. 25 (1930) ; and cf. Barge v. Camp, 209 Ga. 38 (1952) ; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 677 (1938).
Concerning the powers of the General Assembly of this State to enact whatever measures it may see fit, the words of the Supreme Court of Georgia in Tripp v. Martin, 210 Ga. 284, 288 (1954), would seem particularly pertinent to the instant bill:
"the General Assembly of this State is absolutely unrestricted in its power of legislation so long as it does not undertake to enact measures prohibited by the State or Federal Constitution."
Nowhere does the Federal or State Constitution prohibit the sale of "mixed drinks," either on a State-wide basis or in such counties as may fall within a reasonable classification determined by the Legislature so long as such classification is supported by any conceivable intendment or allowable presumption.
It is therefore my opinion that the bill is valid and meets every requirement of the State Constitution.
March 2, 1964
HOSPITAL SERVICE CORPORATIONS
The question presented is whether the revival of a charter of a hospital service corporation should be initiated with the Secretary of State or in the superior courts.
Hospital service corporations were specifically declared not to be insurance companies by the Legislature prior to enactment of the 1960 Insurance Code (Georgia Laws 1960, pp. 289, 764). The repealer specifically repealed the 1950 Act (Georgia Laws 1950, p. 335) which

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at that time provided for incorporation of non-profit hospital service plans and provisions for them were set out in Chapter 56-17 of the 1960 Insurance Code. This marked the first time that such corporations were recognized as insurance companies if the placing of these provisions in the Insurance Code can be construed as such recognition.
As you pointed out in your letter, the Insurance Code provides for charters of hospital service corporations to be obtained from the Secretary of State but that there are no provisions for revival of such a corporation.
Section 22-601 of the Georgia Code Ann. provides that revival of charters of such corporations be made by a judgment of the superior court of the county of residence of the original corporation since the original charters were obtained through the superior courts. Therefore it appears that the only method provided by law for revival of a charter of a hospital service corporation is by a judgment of the superior court.
This method of revival would appear to be the correct procedure to follow in your case since at the time the charter was originally granted, the corporation was declared by law not to be an insurance company and the law provided that its charter be obtained through the superior court.
I might point out that the Constitution of the State of Georgia provides that charters of all insurance companies be obtained from the Secretary of State. Whether or not it was within the power of the Legislature to declare what in all outward appearances was an insurance company specifically not to be an insurance company is questionable in view of the constitutional provision. However, it does not appear to be necessary to decide that question now since the charter in the instant case was granted in accordance with the law at that time and since we are concerned only with the question of a revival of a corporate charter previously granted and not the granting of an entirely new charter.
It is, therefore, my opinion that the revival of a charter of a hospital service corporation should be made by a judgment of the superior court if such corporation was originally chartered by the superior court.
March 2, 1964
PREMIUM TAX
This is in reply to your letter requesting my opmwn as to the proper construction of a City Ordinance of the City of Moultrie relating to premium taxes assessed against insurance companies. It is my understanding that the insurance company involved is reluctant to pay the taxes on certain premiums for they are only able to offset

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such taxes under state retaliatory provisions when it is made to appear that they are legally owed to the City.
The Ordinance in question provides in part as follows:
"The tax is applicable to all premiums on such insurance and bond business transacted in said city, whether the risk or subject matter covered by the policies or bonds are within or without said city."
The question involved is whether business placed with the Colquitt County Board of Education, whose office is in the Courthouse in the City of Moultrie, with an agent of the insurance company having an office in the City of Moultrie, represents insurance business transacted in the City pursuant to the Ordinance. The insurance company contends that this business is transacted in the County and not "transacted in said City."
The Ordinance makes no exceptions to any business transacted with county officials and this appears to be the only argument relied upon by the company in its contention. The mere fact that 'the transaction is made with county officials does not alter the fact that it took place in the City. The fact that the agent's office making the transaction is located in the City along with the County Courthouse would bring it within the Ordinance.
It, therefore, is my opinion that the transaction with the Colquitt County Board of Education does represent insurance business transacted in the City and the premium taxes paid by the company on such
business could be offset against state retaliatory provisions.
March 5, 1964
OPINION TO THE DEPARTMENT OF AGRICULTURE
You request my opinion on whether or not property owned by the Agricultural Commodity Commission for Peanuts is subject to city and county taxes. I assume you have reference to ad valorem taxes.
Constitutional authority for the exemption of all public property from taxation is found in Ga. Const. art. VII, I, para. IV (Georgia Code Ann. 2-5404) :
"The General Assembly may, by law, exempt from taxation all public property...."
This constitutional provision has been implemented by the Exemptions from Taxation Act, Georgia Laws 1946, p. 12 (Georgia Code Ann. 92-201) :
"The following described property shall be exempt from taxation, to wit: All public property; . . . provided the property so exempted be not used for the purpose of private or corporate profit and income, ... "

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The Agricultural Commodity Commission for Peanuts was created and established under the provisions of the Georgia Agricultural Commodities Promotion Act, Georgia Laws 1961, pp. 301-351. According to 7 and 8 of the Act, ibid., p. 308 (Georgia Code Ann. 52907, 5-2908), it is a public corporation and an instrumentality of the State. Section 22-103 defines a public corporation as follows:
"A public corporation is one having for its object the administration of a portion of the powers of government, delegated to it for that purpose .... "
The general rule with regard to the exemption of public property from taxation is stated in 84 C.J.S. Taxation 251 (1954):
"Ordinarily, in order to be exempt from taxation as public property, the property must be publicly owned, and title must be vested in the state, a subordinate political subdivision, or public corporation.... "
A similar view is found in Williamson v. Housing Authority, 186 Ga. .673, 691, 199 S. E. 43 (1938) :
"Public property . . . embraces only such property as is owned by the State, or some political division thereof, and title to which is vested directly in the State, or one of its subordinate political subdivisions, or in ... a subordinate public corporation."
The Williamson case is cited withapproval in Culbreth v. Southwest Georgia Housing Authority, 199 Ga. 183, 189, 33 S.E.2d 684 (1945), which decided that the property of the Southwest Georgia Housing Authority was exempt as public property from State and county ad valorem taxes. See also Sloan v. Polk County, 70 Ga. App. 707, 29 S.E.2d 284 (1944) ; Penick v. Foster, 129 Ga. 217, 58 S.E. 773 (1907) ; Newton v. City of Atlanta, 189 Ga. 441, 6 S.E.2d 61 (1939) ; Sigman v. Brunswick Port Authority, 214 Ga. 332, 104 S.E.2d 467 (1958).
In addition to approving the general rule stated in the preceding paragraph, the Court points out in Wright v. Fulton County, 169 Ga. 354, 150 S.E. 262 (1929), that public property is always presumed to be exempt from the operation of general tax laws, because it is reasonable to suppose that it was not within the intent of the legislature to make public property subject to them.
Because the propery owned by the Agricultural Commodity Commission for Peanuts, a public corporation and an instrumentality of the State, is public property, not used for the purpose of private or corporate profit and income, it is in my opinion exempt from city and county ad valorem taxes.

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March 5, 1964
PRISON BILLS OF 1964
This will acknowledge receipt of your letter concerning the import of the Prison Bills recently passed by the Legislature, particularly those Bills dealing with misdemeanor cases.
Of course, these Acts do not become law until the Governor signs them; therefore any views I express are entirety unofficial.
The Bills in question attempted to eliminate the situation in which a misdemeanant is given an alternative sentence of a number of months or a fine, and upon non-payment of the fine is sent to the State Prison in Reidsville.
A judge in a misdemeanor case may still sentence an individual to the State Prison if he feels such punishment is necessary. This may be done by giving him a straight sentence of over six (6) months which is not conditioned on the payment of a fine. If a fine is involved, the individual must be kept under local supervision in either the county jail or the county public works camp. If a county does not have a public works camp, it may contract with a neighboring county to take such prisioners.
Imprisonment is still allowed whether an individual is able to pay a fine or not. The significant change is that he may not be sent to the State Prison if a fine is involved in the Sentence.
As I stated earlier, these Bills are not law at the present time, and even when signed, are not effective until July 1, 1964.
March 6, 1964
OPINION TO THE GOVERNOR
A question has been raised concerning the validity of the so-called Congressional Reapportionment Act (Senate Bill 276). The validity of the bill is questioned on the ground that it was not passed within the time limits of the regular session of the General Assembly as prescribed by Article III, Section IV, Paragraph III of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-1603). Specifically it is alleged that the clock in the House of Representatives was stopped prior to midnight, February 21, 1964, and that said bill was not passed and the General Assembly did not adjourn until some time after midnight of said date.
The bill has been duly signed by the President of the Senate and the Speaker of the House of Representatives and is pending approval by you. On the assumption that you will approve the bill, its validity will be conclusively presumed.
The Courts of this State have consistently followed "the principle commonly known as the conclusive presumption of an enrolled act."

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Cap,itol Distrib. Co. v. Redwine, 206 Ga. 477, 484 (1950). See also Atlantic Coast Line R.R. v. State, 135 Ga. 545 (1910) ; Williams v. MacFeeley, 186 Ga. 145 (1938); Mayes v. Daniel, 186 Ga. 345 (1938); Thompson v. Talmadge, 201 Ga. 867 (1947); and Smith v. McMichael, 203 Ga. 74 (1947).
In William v. MacFeeley, supra, the Court summarized that principle in the Headnotes to that decision, as follows:
"3. An enrolled act of the legislature, bearing the signature of the officers of both Houses, and the approval of the Governor, and deposited with the Secretary of State, can not be shown to be invalid by reason of entries or lack of entries in the journals of the General Assembly touching the details of its passage.
"4. A duly enrolled act, authenticated by the presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, in accordance with constitutional requirements, and it is not permissible to show the contrary by extrinsic evidence."
Since all of the steps of authentication outlined above have been or presumably will be followed with respect to Senate Bill 276, it follows that the Courts of this State will not look beyond those steps to establish by extrinsic evidence that the bill was not passed within the prescribed time.
Our attention has been called to the decision of the Supreme Court of Appeals of West Virginia in the case of State v. Winters, 132 S.E. 2d 375 (1963). In that case, an act of the legislature of West Virginia was invalidated by the Court on the ground that the act had in fact been passed after the expiration of the time limit of the legislative session, and that it was so done through the device of stopping the legislative clock.
The holding in that case may be distinguished from the consistent holdings of the Supreme Court of Georgia in that West Virginia has not subscribed to the "conclusive presumption" principle but instead has followed the view that "the courts may look to the journals of the Legislature and to other public records, but not to extrinsic evidence, to determine whether an act has been passed in accordance with constitutional requirements."
Even if the West Virginia view were followed in the instant situation, however, Senate Bill 276 must still be held valid insofar as the regularity of its passage is concerned. In the West Virginia case, the records of the legislature were replete with evidence that the clock in the legislative chamber had been stopped but that the watches of numerous members showed the time to be well after midnight. The Court stated:
"In both the Armbrecht case and the Heston case [where legislation was upheld despite clock-stopping charges], the legislative journals indicated, in clear, unambiguous language,

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that adjournment occurred on a date when the legislature was constitutionally authorized to be in session. No ambiguity in that respect appeared. On the contrary, the journal of the House of Delegates for March 9, 1963, does not contain a clear, unequivocal or unambiguous declaration or pronouncement of the date and hour of adjournment. The language employed in the journal of the house for that day is as follows: 'Stating that according to the clock in the House Chamber it was now 11:58 P.M., Mr. Brotherton moved that the House of Delegates adjourn until 12:00 noon, Monday, March 11, 1963,' This language is contrasted with the following unequivocal, unambiguous declaration contained in the House journal for Monday, March 11, 1963: 'At 6:55 P. M., on motion of Mr. Brotherton, the House of Delegates adjourned sine die.' We believe, therefore that the House journal for Saturday, March 9, 1963, omitted to disclose an affirmative declaration in clear, unambiguous language, that the adjournment was within the sixty-day period prescribed by the Constitution." 132 S. E. 2d at 381.
Not only did an ambiguity appear in the entry cited above, but there were numerous other entires in the journal quoting members as pointing out that the clock had been stopped and it was, in fact, after midnight.
In the case of Senate Bill 276, there is no equivocation or ambiguity whatever contained in the journal of the House of Representaties. The journal shows plainly the time of adjournment through the passage of H. R. 562, which reads as follows:
"Be it Resolved by the House of Representatives, the Senate concurring, that the General Assembly do adjourn sine die on Friday, February 21, 1964, at 11:59 o'clock P.M."
The foregoing is the only entry in the journal, which in turn is the only offical record of proceedings in the House of Representatives, relative to time with respect either to adjournment or to the passage of Senate Bill 276.
Thus, even under the West Virginia view, Senate Bill 276 would have to be presumed to have been validly passed, since there is no ambiguity or equivocation in the official records and since extrinsic evidence therefore could not in any circumstances be allowed to impeach such records or to overcome the presumption of validity.
It is, therefore, my opinion that the validity of Senate Bill 276 would be upheld by the Courts insofar as circumstances surrounding the regularity of its passage are concerned.

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March 6, 1964
OPINION TO THE MERIT SYSTEM OF PERSONNEL ADMINISTRATION
I wish to acknowledge receipt of your letter in which you request my opinion as to whether in view of legislation enacted at the 1964 session of the General Assembly (House Bill No. 1248), the position of Director of the State Game and Fish Commission is still under Merit System coverage, or whether it should be removed from the classified service.
My opinion on September 25, 1959 to the effect that the office of the Director of the State Game and Fish Commission was legally placed under the Merit System by the Governor's Executive Order, dated December 16, 1955, notwithstanding, it is now my official opinion that in view of the recent legislation enacted by the General Assembly, which provides for the fixing of the salary of the Director in an amount which in no event shall exceed $17,500 per annum, and which provides that the Director shall hold office at the pleasure of the Commission, and which provides that the Commission shall prescribe the powers and duties of the. Director, that the position of Director of the State Game and Fish Commission is not now under the Merit System coverage, and the position should be removed from the classified service.
The action of the 1964 General Assembly in dealing with the duties, powers, compensation and term of office of the Director are in conflict with and repugnant to the total philosophy, substance and laws under which the Merit System now functions, and would preclude the Director under such law from eligibility for coverage under the Merit System.
March 9, 1964
OPINION TO THE DEPARTMENT OF BANKING
Reference is made to your letter as to whether or not capital notes issued by banks in the form of debentures would be included as part of the capital account of the banks for ad valorem tax purposes.
Section 92-2406 of the Georgia Code Annotated provides, in part:
"92-2406. Banks and banking associations.-No tax shall be assessed upon the capital of banks or banking associations organized under the authority of this State or the United States located within this State, but the shares of the stockholders of the banks or banking associations, whether resident or nonresident owners, shall be taxed at their full market value, including surplus and undivided profits, at the same rate provided by law for the taxation of tangible property in the hands of private individuals: Provided, that nothing in this section shall

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be construed to relieve such banks or banking associations from the tax on real estate held or owned by them, but they shall return said real estate at its true value in the county, munici~ pality and taxing district where such real estate is located: Provided, further, that when real estate is fully paid for the value at which it is returned for taxation may be deducted from the market value of their shares; and if said real estate is not fully paid for, only the value at which the equity owned by them therein is returned for taxation shall be deducted from the market value of their shares. The banks or banking associations themselves shall make the returns of their shares and pay taxes thereon as herein provided .... "
This section imposes the tax upon the shares of the stockholders "at their full market value" and hence any opinion I might give you could only repeat or paraphrase that language.
However, I realize that market value is a question of fact oftentimes quite difficult of ascertainment, particularly with reference to the shares of many banking institutions in which there is little or no active trading. The Revenue Department has recognized this problem in an administrative way in a memorandum regarding the ad valorem taxation of banks dated January 1, 1962, copy of which is attached. That memorandum provides that in the determination of the full market value of bank shares, the taxing authorities may accept as presumptively correct a valuation based on net worth comprising capital stock, surplus and undivided profits as reflected by the books of the banking corporation.
A debenture, of course, is a debt instrument, and would not be includable in the proprietary or "equity" interest in the corporation owned by the stockholders and comprising stock, surplus and undivided profits.
In view of your letter, I have suggested to the Revenue Department that the following language be added to its administrative memorandum regarding the ad valorem taxation of banks:
"As a general proposition, for the purposes of ad valorem taxation, debentures issued by the banking corporation shall not be regarded as a part of either capital stock or surplus."
I am pleased to say that the Revenue Commissioner has advised me that such an addition is being made.
In my suggestion to the Revenue Department, I empasized to the Commissioner that my suggestion was not intended in any way to restrict or limit the administrative determination by the Department of the full market value of bank shares for ad valorem tax purposes.

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March 9, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter in which you requested an opinion as to the legality of using public school funds for the purchase of band uniforms where the school band is considered a part of the instructional program of the school.
It is my opinion that a local board of education may legually use public school funds for the purchase of school band uniforms provided that the school band is not merely an extracurricular activity, but is instead an integral part of the school's educational curriculum.
Georgia Code Ann. 32-942 provides that school funds must be kept separate and distinct from other public funds and that such public school funds :
"Shall be used for educational purposes and none other ...."
In general, the courts of Georgia have construed the words "educational purposes" broadly, Worth v. Board of Education, 177 Ga. 166 (1933) and as stated by the Supreme Court of Georgia in Board of Commissioners v. Bond, 203 Ga. 558, 560 (1948):
"the term, 'for educational purposes,' is broad enough to cover all things necessary or incidental to the futherance of education...." (Emphasis added)
Although I am unable to locate any case relating to the purchase of band uniforms, it is my opinion that where the school band is a part of the school's educational curriculum, as, for example, where pupils can earn credits toward graduation in band or music courses taught during regular school hours, with such courses including instruction in the playing of musical instruments both as an individual and as a part of a band, the purchase of band uniforms would clearly seem to be, at the very least, "incidental" to the futherance of education in the field of music.
It should carefully be noted, however, that my opinion regarding the property of expending school funds for the purchase of band uniforms is restricted to situations where the musical instruction is a bona fide part of the educational curriculum of the school. Where .a band composed of students is in reality no more than an extracurricular activity, the expenditure of school funds would not be legal even though the band might participate in school affairs and have teacher assistance in regular practice sessions held at the school (but which practice sessions are not part of an organized course of instruction for credit and thus a part of the educational curriculum of the school).

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March 9, 1964
OPINION TO THE FORESTRY COMMISSION
This will acknowledge your recent letter in which you ask if the Georgia Forestry Commission may purchase uniforms to be worn by certain personnel of the Commission (for the purpose of identification) in connection with their official duties.
The Georgia Code Ann. 43-206 sets forth the powers and duties of the Forestry Commission. In stating various powers and duties this statute further provides, in part, that the Commission has power "to conduct and direct fire prevention work and maintain equipment, P'ersonnel and installments for the detection, prevention and combatting thereof ...." (emphasis supplied) In addition to the authority to maintain equipment and personnel, this statute also provides: "The enumeration of specific powers herein shall not be construed as a denial of others not herein specified."
Although the Commission is not specifically authorized by statute to purchase uniforms, and while this statute does not prohibit the purchase of uniforms, the portions of the statute quoted herein should be construed to authorize the purchase of uniforms inasmuch as the purchase of uniforms is to be considered a part of the Forestry program to conduct and direct fire prevention work as stated in the foregoing statute.
Of course the purchase of such uniforms must be made through and with the supervision of the State Supervisor of Purchases. Georgia Code Ann. 40-1902 as amended in the 1964 Session of the General Assembly. Furthermore, 40-1906.1 provides that it is the power, authority and duty of the Supervisor of Purchases to contract for the purchase of all supplies, materials and equipment required by State Government or agencies thereof. This section also provides for requisitions, bidding and certification of supplies.
Section 40-1916 provides for exceptions whereby certain supplies such as technical instruments, supplies and books, livestock, drugs, chemicals, et cetera, need not be purchased through the Supervisor of Purchases.
Sections 40-1918 and 40-1919 provide that any purchase not made in conformity with the foregoing statutes shall be void, and further, that the executive officer of such state agency shall be personally liable for the costs thereof.
Therefore, in the absence of express prohibition of the purchase of such uniforms by the Forestry Commission and in addition, taking into consideration the permissive language quoted herein (in part) which is contained in 43-206, it would be permissible for the Commission to purchase said uniforms for use in connection with the forestry program. It is also concluded that such purchases should be made through the State Purchasing Department.

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March 9, 1964
OPINION TO THE STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS
I have your letter requesting an opinion as to the possible violation of ethics and law of Mr. S-, a violation of ethics being charged to the said Mr. S- by the Consulting Engineers Association of Georgia.
Specifically, the Consulting Engineers Association of Georgia charges Mr. S- with a violation of the Engineers' Code of Ethics, Article 2, which states that it is unethical for one:
"To attempt to injure falsely or maliciously, directly or indirectly, the professional reputation, prospects, or business of anyone."
The charge made by the Consulting Engineers Association requests that the Board take the necessary action required by law governing the practice of professional engineering and surveying to determine why the license of Mr. S- should not be revoked.
In the first instance, 84-2141 of the Georgia Code Annotated provides that any "person" may prefer charges against any registrant. The charges made against Mr. S- are made by the Consulting Engineers Association of Georgia, which organization is not a "person" within the purview of the statute. The charges should be made by some individual person.
I am of the opinion that the Board lacks the authority to revoke the engineering license of Mr. S- for an alleged violation of paragraph 2 of the Engineers' Code of Ethics. In speaking of the general effect of a license to carry on a business or profession, it is said in 53 C.J.S. Licenses 42 (a) (1948):
"It is not property and it does not create a contract or vested right, as stated supra Sec. 2, and it confers no more than a personal privilege; but it may give to its possessor something which is valuable and which has all the qualities of property, and it confers a valuable personal right which generally cannot be denied or abridged except after due notice and a fair and impartial hearing."
It is further stated in 53 C.J.S. Licenses 44 (b) (1948) :
"A license may be revoked for the specific reasons enumerated by statute or ordinance, but, where the act or ordinance enumerates the causes for which a license may be revoked, it cannot be revoked for any cause not enumerated."
The foregoing two quotations from Corpus Juris Secundum are fair statements of the law involved in the instant question.
In Leakey v. Georgia Real Estate Comrn'n, 80 Ga. App. 272 (1949), it is said:
"The right to make a living is among the greatest of human rights, and, when lawfully pursued cannot be denied."

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Schlesinger v. Atlanta, 161 Ga. 148, 159 (129 S.E. 861). Where the State confers a license to engage in a profession, trade, or occupation, not inherently inimical to the public welfare, such license becomes a valuable right which cannot be denied or abridged except after due notice and a fair and impartial hearing before an unbiased tribunal. Gilchrist v. Bi~ring, 234 Iowa 899 (14 N.W.2d, 724). Where a real-estate broker has once obtained an annual license, he is, under Code Sec. 84-1411, entitled to have the license renewed from year to year upon payment of the license fee, provided he has not violated any of the provisions of the statute applicable to his profession, and this right of renewal may not arbitrarily be denied. City Council of Augusta v. Sanders, 164 Ga. 235 (138 S.E. 234) ." (Emphasis supplied)
Section 84-2140 of the Georgia Code Annotated provides as follows:
"The Board shall have the power to revoke the certificate of registration of any registrant who is found guilty of:
(a) The practice of any fraud or deceit in obtaining a certificate of registration.
(b) Any gross negligence, incompetence, fradulent act of misconduct in the practice of professional engineering or surveying as a registered Professional Engineer of Land Surveyor."
I am of the opinion that the violation of ethics charged to Mr. Sis not embraced or encompassed in any of the acts enumerated and set forth in the said 84-2140, and, therefore, the Board would have no authority to revoke Mr. S-'s license; that is, even assuming that after a fair hearing the Board should find the charges to be true.
As to the charges made that Mr. S- violated Paragraph 2 of the Code of Ethics, I call to your attention that the two key words in the paragraph are "falsely" and "maliciously," which are stated in the alternative. In Webster's New International Dictionary the word "false" is defined as follows:
"a. Not according with truth or reality; not true, erroneous ; incorrect; b. Intentionally untrue, as, to bear false witness."
I am of the opinion that the word "falsely" as used in the Code of Ethics should be construed to mean "knowingly untrue" or "intentionally untrue."
Webster's New International Dictionary defines "malicious" as:
"Indulging or exercising malice; harboring ill will or enmity; proceeding from hatred or ill will."
I have called your attention to the definition of these words to illustrate that it might be difficult to prove that the statements made by Mr. S-, which are the subject matter of the charges against him,

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were made falsely or maliciously. However, should it be found that the statements attributed to Mr. S- were made in such a reckless manner as to amount to a disregard of the truth or falsity thereof, then I think the charge of falsity would be sustained. In the last analysis, however, a charge of violation of professional ethics is a matter which the Board must determine after a fair and proper hearing has been held.
March 9, 1964
EDUCATION
This is in reply to your letter in which you ask whether it is lawful for local boards of education to allow private teachers to give private lessons in the public schools in the absence of any monetary consideration flowing to the local broad by virtue of such private lessons.
Inasmuch as the local school board is vested with full control over schoolhouses, and may use the same in such manner as the board deems to be in the best interests of the common schools, I believe that local boards may authorize the use of classrooms by private teachers for private lessons with or without compensation to the board for such use, provided, of course, that the primary use of such schoolhouse for public school purposes is not interfered with.
Georgia Code Ann. 32-909 provides in part:
"The said [local] 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. . . ." (Emphasis added)
In addition, Georgia Code Ann. 32-809 authorizes the local board:
"to lease any schoolhouse or other school property for private educational purposes to any person ... engaged in the operation of a private school, provided that such lease shall be for a period not longer than five years." (Emphasis added)
Under the foregoing statutes, it would seem clear that the local school board, as a general rule, may permit a private teacher to teach private lessons in the school either under a lease arrangement not exceeding five years, or free of charge by permission. See also Ops. Att'y Gen. 207,209, (1954-56), (expressing the opinion that it would not be illegal for a local board to permit a private art or music teacher to conduct private art or music lessons on public school property for those pupils who desire such instruction at their own personal expense).
There would, it appears to me, be one significant distinction between the situation of a lease not exceeding five years under 32809 (with compensation involved) and a mere permit under 32-909

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(no monetary consideration involved). Where the local board enters into a lease agreement under the former statute, such as the lease of a particular classroom to a private teacher during specified hours, such lease will be binding upon the board during the term of the lease even though it might to some extent interfere with the use of such classroom for school purposes.
Where, however, there is only a "free of change" permission to teach private lessons, I am of the opinion that such use by a private teachers for private lessons could become illegal if such use interfered with the primary use of the school building or any room or part thereof for public education purposes. This appears to be the general rule elsewhere, [See 78 C.J.S. Schools and School Districts 259 (b) (1952) ; 47 AM. JUR. Schools 67] and seems to be implicit in that portion of 32-909 which limits the control of the interests board to such uses "as they think will best serve the interests of the common schools." The underlined section would in all likelihood be construed by the courts as requiring the board's discretion, albeit broad, to be reasonably exercised, and should the use by private teachers be clearly shown to interfere with and be detrimental to the use of the school for public school purposes, I believe the authorization of private lessons by the board would be found to be an abuse of its discretion and illegal.
March 9, 1964
HUNTING
This will acknowledge receipt of your letter asking if it is permissible or legal to hunt deer with a rifle firing a .32 Winchester High Velocity Cartridge.
Among the rules and regulations promulgated by the State Game and Fish Commission the following provision is made with respect to the size cartridge used to hunt deer: "Guns for hunting deer are limited to shotguns loaded with slugs or No. 1 buckshot or larger, or to rifles using any center fire cartridge .22 caliber or above with the following exceptions: .25-20; .32-20 ;. 30 Army Carbine; .22 Hornet; or 218 Bee." (emphasis supplied)
Therefore, since the .32 Wincester High Velocity Cartridge is a center fire cartridge and is larger than a .22 cartridge, and further, since it is not excluded by the above exceptions, it would logically follow that it is legal to hunt deer with this cartridge in areas where it is permissible to hunt deer with a rifle.
March 10, 1964
OPINION TO THE GOVERNOR
You requested I review H. B. 709 and advise you of my opinion as to its constitutionality. I have reviewed this bill carefully, and the

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only objections which I feel could possibly arise would be connected with the title of the bill -whether it sufficiently identifies the act or acts to be amended, or whether the title would be inconsistent with the body.
The title states it will amend an act (the entire title of which is set forth together with its statutory citation) and "the several acts amendatory thereof." This is a questionable method of identifying an amendment, and it is my opinion that the several amendatory acts should have been clearly enumerated, so as to preclude any doubt as to the acts which were being amended. However, there being a sufficient identification of the original act, and it appearing the bill does not substitute or strike any provisions contained in either the original act or the amendatory acts, but rather adds additional sections to the act, I feel the bill would probably withstand challenge upon this point, especially when consideration is given to the presumption of constitutionality given bills by the courts.
The body does not contain anything which I feel would be inconsistent with the title. The title "providing a system of pension and benefits for such members and their dependants", and "providing for tax upon the salary of members," while a very brief digest of the contents of the bill, yet, in my opinion, could be construed to cover all contained therein. As stated in Fite v. Black, 85 Ga. 413, 417 (1890), "Certainly this is a very doubtful compliance with the requirement of the Constitution ... [but] ... whilst we have grave doubts of its sufficiency, we are not prepared to hold that it is insufficient.... Under the rule that no statute is to be upturned on mere doubt, we hold that the amending act is constitutional." I do feel it not to be violative of the constitutional prohibition, and therefore, feel the bill is valid.
March 10, 1964
OPINION TO THE GOVERNOR
You asked my opinion concerning the constitutionality of S. B. 279, passed during the 1964 Session of the General Assembly. Briefly, S. B. 279 would amend 61-302 of the Georgia Code Annotated, so as to provide that in counties having a population of 500,000 or more, property removed from premises pursuant to a dispossessory warrant shall be placed in storage, and provides for recovery by the defendant or, if not recovered, for judicial sale to cover costs with remainder to defendant.
The usual grounds under which an act of the General Assembly are found to be violative of the Constitution are: (1) That it constitutes a gratuity in violation of Art., VII, Sec. I, Para. II, Sub-Para. 1 (Georgia Code Ann. 2-5402); (2) That it violates Art. I, Sec. IV, Para. I (Georgia Code Ann. 2-401) by being a special law covering a subject already covered by a general law; (3) That it insufficiently identifies the act or code section sought to be amended, thus violating Art.

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III, Sec. VII, Para. XVI (Georgia Code Ann. 2-1916); (4) That the act violates Art. III, Sec. VII, Para. VIII (Georgia Code Ann. 2-1908) by referring to more than one subject matter or by containing matter different from what is expressed in the title; or (5) That it violates Art. II, Sec. VII, Para. XX (Georgia Code Ann. 2-1920) by being inconsistent with the Georgia Constitution or repugnant to the United States Constitution.
I have thoroughly reviewed the bill in question, and, in my opinion, it very possibly does violate one of these constitutional restrictions. The bill is what is commonly termed a "population act." As such, by applying to a county having a population of 500,000 or more, it would, at present, apply only to Fulton County. While the courts often uphold population acts, they are often equally inclined to strike such exercises in classification when it appears there is no reasonable relation between the population classification utilized and the subject matter contained therein. See City of Atlanta v. Gower, 216 Ga. 368 (1960) ; Murphy v. West, 205 Ga. 116 (1949). There is a grave question in my mind whether there is sufficient justification for enacting a different procedure under 61-302 for counties of that particular population, as opposed to the law as it would apply to the remainder of the State. Therefore, it is my opinion that the act does very possibly violate the prohibition of Art. I, Sec. IV, Para. I of the Georgia Constitution and, if attacked in court, would be struck down as void legislation.
March 10, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter requesting an opinion as to whether the State Board of Education may purchase insurance against ice damage to an educational television station now under construction by the State School Building Authority on property owned by said Authority. In your letter you indicate that the Authority's ownership will terminate upon the expiration of a "lease contract" period and consequently, in rendering this opinion, I proceed on the assumption that the situation is one whereby the State Board of Education has or will have a leasehold interest in the property in question coupled with a right to purchase or otherwise acquire the same upon expiration of the lease agreement.
Based upon the foregoing understanding of the situation involved, it is my opinion that the leasehold interest of the State Board of Education in the property in question, from the time this interest comes into being, constitutes such substantial economic interest as will make the purchase of insurance by the State Board, to protect its property interest, entirely proper.
There would seem to be no question as to the fact that a leasehold interest coupled with a right or option to purchase or otherwise acquire the leased property upon expiration of the lease agreement is an

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"insurable interest" which, under general insurance law, may be protected by the lessee. Georgia Code Ann. 56-2405, in defining the term "insurable interest" as it relates to property insurance, expressly declares that the term means:
"any actual, lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment."
Inasmuch as it has long been settled that a leasehold interest is by itself an insurable interest, e.g., Farmers Mut. Fire Ins. Co. of Georgia v. Harris, 50 Ga. App. 75, 84 (1934), it follows that such an interest coupled with the additional property interest of a right or option to purchase is even more clearly one of those economic interests which may properly be protected by the purchase of property insurance.
The only remaining question would appear to be whether or not the State Board of Education is authorized to use public funds for the purchase of such insurance. This question would seem to be answered in the affirmative by two sections of the Georgia Code. Georgia Code Ann. 32-408.1 authorizes and empowers the State Board of Education:
"to own, operate, maintain and manage television stations, transmission equipment and all other related equipment and facilities, both audio and video, for the production of open and closed circuit telecasting ... and to perform all other things necessary in promulgating, furnishing, producing, transmitting, and making such programs available; and is authorized to enter into agreements with other agencies ... for the production and/or transmission of educational television programs."
Under this statute, the State Board of Education is obviously authorized to lease property and facilities for the operation of educational television. Because the lease arrangement is a proper activity or agreement on the part of the State Board of Education, the expenditure of state funds to protect such properly acquired leasehold interest, through the purchase of property insurance, is also proper, under Georgia Code Ann. 32-408 which provides in pertinent part that the funds appropriated to the State Department of Education for the operation of the public school system shall
"be disbursed by the State Superintendent of schools ... for printing, communication, equipment, repairs and other expenses incidental to the operation of the State Department of Education." (Emphasis added)
The obligation of the State Board of Education, State Department of Education and the State Superintendent of Schools to protect state school properties and property interests would seem to be too basic to require further comment, and for this reason I am of the opinion that the State Board of Education may properly authorize the purchase of property insurance (including ice damage coverage) on property in which it has a leasehold interest. I believe that upon authorization by the Board, the disbursement of premiums due for such insurance

406
by the State Superintendent of Schools would clearly be one of those "other expenses incidental to the operation of the State Department of Education."
In concluding, I would like to note as a word of caution that if such insurance is purchased from a "Mutual Insurance Company" the policy should contain a provision as to its being nonassessable, in order to avoid the constitutional prohibition (Georgia Code Ann. 25801) on the State or any political division thereof to become a stockholder in or to lend its credit to any company, corporation or association, except for purely charitable purposes. See Ops. Att'y Gen. 261 (1954-56); see also Georgia Code Ann. 32-432 (relating to similar statutory requirements in connection with the purchase of liability insurance on school buses by local boards of education).
March 11, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This is in response to your request as to whether the Department of Public Safety may make a capital investment on property at Dublin, Laurens County, Georgia, where the deed to said property contains a reversionary clause. It is also stated in your letter that the improvement on this property for which you intend to make a capital investmentis a State Highway Patrol Barracks.
House Bill No. 948, passed by the General Assembly at the 1964 Session, amends Georgia Laws 1937, p. 322, which creates the State Department of Public Safety and provides that the Director of the Department of Public Safety shall not be authorized to enter into any contract or agreement relating to the construction of quarters which will obligate the Department of Public Safety to pay more than onehalf of the cost of construction of such quarters; further, that any such agreement must be approved by the Department.
Section 1 of House Bill No. 948 amends 12 of Georgia Laws 1937, p. 322, as amended, referred to above, so that when so amended, 12 shall read as follows:
"Section 12 . . . .
"Any municipality or county of this State is authorized to purchase and convey property by deed, gift, rent or lease for the use of the Department of Public Safety for such division or district headquarters. If the deed from said municipality or county to the property to be used for such headquarters contains a reversionary clause to the effect that such property shall revert to such municipality or county in the event it ceases to be used for such headquarters, the Director shall not be authorized to enter into any contract or agreement relative to the construction of quarters, barracks or other facilities for such headquarters, which shall, in any manner

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whatsoever, obligate the Dep,artrnent to P'aY for more than one-half the costs of construction of such quarters, barracks or other facilities. Any such contract or agreement must be approved by the Department." (Emphasis supplied)
This bill further provides that the Director shall appoint a qualified member of the Uniform Division of the Department of Public Safety to act as treasurer of the district or division headquarters who shall give a bond in the amount of $2,000.00 conditioned for the faithful discharge of his duties payable to the Governor.
It is emphatically pointed out that this bill provides that the Department of Public Safety may pay no more than one-half of the total construction costs for any quarters, barracks or other facilities.
This bill was passed by both Houses and does not contain an effective date so the bill will become effective when the Governor signs the bill or at the expiration of thirty (30) days after adjournment of the General Assembly.
Therefore the Department of Public Safety may make a capital investment in the facilities at Dublin so long as the investment amounts to no more than one-half of the total amount of the cost of construction of the barracks.
March 11, 1964
OPINION TO THE STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS
I have your letter requesting my opinion as to a possible violation of ethics and law in the matter of a complaint of Mr. M-, Registered Engineer of Sandersville, Georgia.
It appears from the correspondence between the Board and Mr. Mwhich has been submitted to me, that Mr. M- objects to the ordinances of certain Georgia cities which require the services of a master electrician in work on which Mr. M- is acting at supervising engineer.
In a letter dated January 17, 1964, the Board replied to Mr. Mand stated in some detail that the duties and functions of a master electrician are different from those of an engineer and, in the opinion of the Board, since their functions differ materially, it was proper and necessary that a master electrician be employed and utilized. From my necessarily limited knowledge as to the exact duties, functions and work performed by a master electrician and a supervising engineer, I would not attempt to set my judgment against that of the Board, and for the reasons given in the said letter of January 17, I concur in the findings of the Board.
However, inasmuch as a professional engineer is licensed by the State to engage in his profession, cities may not in anywise restrict or impair such right. It is not the province, duty or function of the

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Board to secure or assure that individual rights be accorded to registered engineers. Accordingly, Mr. M_ _ should be advised that if he feels that, as a registered engineer, he is qualified, competent and authorized to perform the duties and functions of a master electrician, then in such case he should seek the advice of private counsel to secure his right to install and supervise electrical work in such cities in Georgia as he so desires to do.
March 12, 1964
OPINION TO THE HIGHWAY DEPARTMENT
This will acknowledge receipt of your letter requesting an advisory opinion as to my interpretation of House Bill No. 922 enacted by the 1964 General Assembly, recently adjourned.
The bill in question amends subsections (a) and (c) of 68-405 of the Georgia Code Annotated, which is the Act governing and regulating the use of public roads and highways of this State (Georgia Laws 1941, p. 449, as amended, particularly by Acts contained in Georgia Laws 1951, p. 772; Georgia Laws 1955, p. 392; Georgia Laws 1956, p. 83; and Georgia Laws 1959, p. 27), by substituting two new sections in lieu of the old subsection (a) and (c), so as to change the maximum weight and length Iimitation3 on combinations of vehicles for the purpose of increasing these limitations which were formerly authorized by special permits, and by providing for certain exceptions under certain conditions.
Section 1 (a) of the new Act makes statutory provisions for a maximum width, including load, for vehicles using the public roads and highways, of ninety-six (96) inches, not including mirrors and accessories attached thereto; for a maximum height of thirteen (13) feet six (6) inches and maximum length of fifty-five (55) feet. This section further provides that single trip movements for necessary purposes of materials, objects or vehicles of dimensions which exceed these limits therein provided and which are of such nature that they cannot be readily dismantled or separated, may be permitted upon the issuance of a special permit for such purpose, the fee for which is not to exceed One ($1.00) Dollar.
Section 1 (a) also provides that loads of poles, logs, lumber, structural steel, piping and timber may exceed the length therein fixed without requesting special permits.
Section 1 (c) of the new Act provides for a maximum total gross weight of seventy-three thousand two hundred eighty (73,280) pounds for vehicles using the public roads and highways. This subsection further provides that on roads constructed under the Rural Roads Authority, the maximum total gross weight shall not exceed fifty-six thousand (56,000) pounds unless the vehicle is making a pickup or delivery on such roads.

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Section 1 (c) also provides that no officer or employee shall grant, authorize, or allow any length or weight in excess of the limitations therein provided (except by special permit, as defined in subparagraph (a)), in any manner whatsoever.
This law provides that it shall be the duty of the Department of Public Safety and all other law enforcement officers to enforce these sections just discussed.
One final exception is provided: that any vehicle on which State and County ad valorem taxes have been paid, belonging to a contractor who has a contract with the State Highway Department for the construction or maintenance of road or highway, may exceed the weight and length limits provided in these sections when used in connection with such contract, without the necessity of obtaining a special permit otherwise required.
The bill has the usual repealer clause, providing that all laws and parts of laws in conflict with the Act are repealed.
Section 68-405, Georgia Code Annotated, subparagraph (b), was not amended or repealed by the 1964 General Assembly. That subsection provides weight limitations upon axle loadings.
You further request my opinion as to whether or not the Director of the State Highway Department may promulgate rules and regulations for the issuance of special single-trip permits under 48-405 of the Georgia Code Annotated, subsections (a), (b) and (c), as amended by House Bill No. 922 enacted by the 1964 General Assembly, recently adjourned. In answering this question, I call your attention to certain other Georgia Laws which have not been repealed and are in pari materia to this situation.
Section 68-403, Georgia Code Annotated, Georgia 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. However, the language in this section dealing with a permit for a definite period has been repealed by House Bill No. 922.
Section 68-406.1, Georgia Code Annotated, (Georgia Laws 1960, p. 1122) provides:
"Police powers of State Highway Board.-The State Highway Board of Georgia is hereby invested with the authority to exercise certain police powers and by appropriate resolution to designate, deputize and delegate to an appropriate member of a truck weighing crew of the State Highway Department the necessary authority to enforce the provisions of this law [ 68-405 through 68-410, 68-9921] with respect to dimensions, length and weights of motor vehicles permitted to be operated upon the public roads and highways of this State. Nothing contained herein shall be construed so as to permit any such designated member of a weighing crew to carry any fire-

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arm or weapon for the purpose of enforcing the provisions of this law. (Acts 1960, p. 1122.)"
Section 68-407.1, Georgia Code Annotated, (Georgia Laws 1951, pp. 90, 91) provides that the Chairman of the State Highway Board, or 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 cannot be readily dismantled or separated."
This 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 in its discretion, to limit the number of trips, to establish seasonal or other time limits or prescribe other 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."
References to State Highway Board, Chairman and State Highway Engineer in these sections, supra, now refer to the authority of the Director, by virtue of the Highway Reorganization Act of 1963, Georgia Laws 1963, page 3. See my opinion to Governor Sanders dated the 15th day of May, 1963.
In my opinion the legislative intent to be gathered from the laws referred to is that the limits established by law, both as to axle loading and gross weight, and the dimensions, both as to width and length, represent limits within which unrestricted use of the roads and highways is permissible, and that use of the roads and highways to transport any load or load weight and/or dimensions above the limits fixed by law of such nature that they are units which cannot be readily dismantled or separated shall be closely controlled by granting of special single-trip permits, the cost of which shall not exceed One ($1.00) Dollar, that the application for such permits shall be in writing and shall specifically describe the vehicle and load to be 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 seasonable or other time limits, or prescribe other conditions so as 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."
It is clear from the language of these laws construed, together with House Bill No. 922, that the Legislature intended that the Director of the State Highway Department should have broad discretion in the issuance of special single-trip permits under the circum-

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stances described in these laws, and that he should be able to promulgate rules and regulations for the issuance of such permits as provided by these laws. All statutes in pari materia are to be taken together as if they were one law. Sampson v. Brandon Grocery Company, 127 Ga. 454, 456 (1907). A statute must be construed with reference to the whole system of which it forms a part. McDougald, Adm'x v. Dougherty, 14 Ga. 674 (5) (1852).
It follows that your second question must be answered in the affirmative.
March 13, 1964
OPINION TO THE GOVERNOR
I wish to acknowledge receipt of your letter in which you request my official opinion as to the constitutionality of House Resolution 409-929 (Georgia Laws 1964, p. 751) entitled "Contribution of Bricks From Old Soldiers Home."
I have reviewed the Resolution, and in my opinion it is clearly and directly in violation of Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945, which states 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."
I fully appreciate the motives and objectives of the Legislature in making a contributory award to the Georgia Division of the United Daughters of the Confederacy as a token of appreciation of their untiring contributions to the Old Soldiers Home, but to accomplish this purpose by means of an outright gift or donation on the part of the State without following the provisions of the law of this State with respect to the disposition of surplus property, would be in direct violation of the provisions of the Constitution above cited.
March 13, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge receipt of your letter in which you request my official opinion as to the effect of HB 932 which amended the Motor Vehicle Safety Responsibility Act. You referred to the fact that 3 of HB 932 amended existing 7-A of the Act by striking the section in its entirety and substituting a new 7-A. The earlier 7-A contained subsections (a), (b), (c) and (d); new 7-A contains only the matter dealt with in subsection (a) and makes no mention of subsection (b), (c) and (d). Your question, therefore, was whether HB 932 completely eliminated subsections (b), (c) and (d) from 7-A of the Act.

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We have reviewed the legislative history and development of 7-A of the Motor Vehicle Safety Responsibility Act, originally enacted in 1951, through its several amendments, including HB 932. In 1956, the General Assembly struck 7-A of the original act and substituted a new 7-A, which is presently codified as 92A-608, Georgia Code Ann., including subparagraphs (a), (b), (c) and (d). This enactment of 7-A remained substantially unamended, except as to one minor detail, until the 1964 General Assembly enacted HB 932.
It would appear, therefore, that HB 932 did, in fact, strike subparagraphs (b), (c) and (d) of 7-A and retained only the subject matter set forth in HB 932 as 7-A. We presume that the provisions will be included as 92A-608, in the unofficial codification known as the Georgia Code Annotated, and reflect only that matter which appears in HB 932.
With respect to the second question you raise relative to instances in the new Act which are in conflict with portions of Motor Vehicle Safety Responsibility Act which were not amended, it can be stated as a general rule that, where sections of the same act seem to be in irreconcilable conflict, the section which is derived from the later act of the Legislature must control inasmuch as it is the latest expression of the legislative will. It is our opinion, therefore, that the provisions of HB 932 will prevail over earlier provisions of the act which cannot be reconciled.
March 18, 1964
OPINION TO THE DEPARTMENT OF REVENUE
You have requested my opinion as to whether sales of water by the Clayton County Water Authority are subject to tax under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, pp. 360, 387), as amended.
Section 2(f) of the Sales and Use Tax Act, as amended, provides as follows:
"The tax levied by this Act shall not apply to the sale of water by municipal corporations or other political subdivisions of this State...."
The Clayton County Water Authority was created by Act of the General Assembly approved March 7, 1955 (Georgia Laws 1955, pp. 3344, 3351). The Act provides that the County of Clayton shall have the right, power and authority to operate, build and maintain a waterworks system and to sell water. The Act empowers the County to issue water revenue-anticipation certificates for construction purposes as may be authorized by law. The Act goes on to say that any water system that may be constructed under its provisions shall be construed to be property of Clayton County. Under the Act, the County has the right, power and authority to exercise poliCe powers over the entire water system and the right and authority to make

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rules and regulations governing the construction, operation and maintenance of the system.
The Act further provides that said water system is to be constructed, maintained and operated for and on behalf of the County by a five-man board known as the Clayton County Water Authority. The initial members of the board, together with their respective terms of office, are named in the Act, and the governing authority of the County is to appoint their successors at the end of any regular term.
The Board is vested with general supervision and control over the water system, and is charged with regulating and providing for the use of its water, fixing the rates for such usage, and collecting accounts. It is required to keep all collections in a bank or banks designated by the County governing authority, and persons handling any of such funds are required to give a surety bond in such amount as may be required by the Board and approved by the County governing authority. Any funds accumulated in excess of those required to retire any revenue certificates, or other indebtedness incurred in the construction, maintenance, operation and expansion of said water system, and to provide for any reserves and funds required to be maintained by the County in connection with the issuance of any such revenue certificates, shall be transferred to the County governing authority to retire any general obligation water bonds which may be outstanding, and any excess over the payments that would be due on such bonds shall be used by the County for any legal purposes for which taxes may be levied or expended. The Board is required to make quarterly reports to the County governing authority of all monies it has received and expenditures made in the operation of the water system.
The County governing authority may in its discretion alter, change, modify or repeal any of the rules or regulations adopted by the Board, and the Board is made amenable to the County governing authority and subject to removal from office for neglect of duty or malfeasance in office.
The original Act was amended in 1961 (Georgia Laws 1961, pp. 3130, 3132) and again in 1963 (Georgia Laws 1963, pp. 2967, 2969) to change the terms of office and composition of the members of the Authority, to provide for their compensation and for filling vacancies.
From a careful reading of the Act, as amended, the pertinent provisions of which are set out above, it is my conclusion that the Clayton County Water Authority is an agency of Clayton County constituted to operate the water system owned by the County for and on its behalf. Accordingly, it is my opinion that the tax levied by the Georgia Retailers' and Consumers' Sales and Use Tax Act does not apply to sales of water by said authority since in reality such sales are sales by the County, a political subdivision of this State, and thus exempt from such tax by 2 (f) of the Sales and Use Tax Act quoted above.

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March 19, 1964
LICENSE TO PRACTICE MEDICINE
I have your letter wherein you request my opinion as to the following question:
"In your State, does the law permit a resident to treat a patient, under proper supervision, if he is
a. Unlicensed b. License (temporary) c. Licensed (full)?"
As I understand it, you are primarily concerned with the question as to whether an intern or resident in a hospital in Georgia is allowed under the law to perform the duties of an intern or resident, being unlicensed to practice medicine by the State Board of Medical Examiners.
First, answering paragraph "c" above, there is, of course, no question but that a person who holds a valid, existing license issued by the State Board of Medical Examiners is fully and legally qualified to practice medicine in Georgia.
Section 84-912 of the Georgia Code Annotated provides as follows:
"84-912. Temporary licenses, issuance to applicants for license, to practice.-In the discretion of the Joint-Secretary, State Examining Boards, with the approval of the President of the State Board of Medical Examiners, he may issue a temporary license to an applicant which shall have the same force and effect as a permanent license until the next regular meeting of the Board, when said license shall become void. Said license shall not be recorded. (Acts 1913, pp. 101, 105; 1918, pp. 173, 191; 1931, pp. 7, 37.)"
It therefore follows from this section of the Code that any person holding a temporary license issued by the Board of Medical Examiners may practice medicine in Georgia during such time the said temporary license is of full force and effect.
As to the question of whether an unlicensed intern or resident is practicing medicine in Georgia 84-901 of the Georgia Code Annotated is as follows:
"84-901. 'Practice of medicine,' 'to practice medicine,' 'practicing medicine,,' and 'practice medicine' defined.-The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever, or the maintenance of an office for the

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reception, examination and treatment of persons suffering from disease, defect or injury of body or mind, or attaching the title 'M.D.,' 'Oph.,' 'D.,' 'Dop.,' 'Surgeon,' 'Doctor,' either alone or in connection with other words, or any other words or abbreviations to his name, indicating that such person is engaged in the treatment or diagnosis of disease, defects or injuries of human beings. (Acts 1913, pp. 101, 108; 1918, pp. 173, 196.)"
I am of the opinion that an intern or resident who is practicing under the supervision of a licensed physician or physicians is not practicing medicine within the purview of 84-901, and, therefore, may legally perform such duties as may be assigned to said interns and residents by duly licensed physicians.
March 24, 1964
COUNTY FINANCES
This is to acknowledge receipt of your letter asking whether Wilkes County can legally borrow or pay out tax money for a nursing home proposed by the Wilkes County Hospital Authority.
In your letter you state that 10 of Georgia Laws 1941, page 241, limits participating governing bodies to an annual levy not exceeding five mills. I wish to advise that said section was amended in Georgia Laws 1953, pages 103 and 105, unofficially codified as 99-1512 of the Georgia Code Annotated, which reads in part as follows:
"Provided, however, that in addition to the aforesaid five mill levy, counties, cities or towns which have executed contracts with hospital authorities are hereby authorized to levy annually an additional ad valorem tax not exceeding two mills exclusive of all other taxes, from which additional reven.ues when realized there shall be appropriated sums to be used exclusively to pay for the cost of acquiring, construction, equipping, altering, modernizing or repairing by authorities of any 'project' as defined in this Chapter. . . ."
It is doubtful whether a "nursing home" would have been included in "projects" as defined in Georgia Laws 1951, page 242, codified as 99-1502 of the Georgia Code Annotated. However, an act of the 1964 General Assembly, House Bill No. 162 (Sub), entitled "Hospital Authorities Law,'' which will become effective on July 1, 1964, specifically includes nursing homes within the class of approved projects.
As to the question generally of the financing of such a project, the Hospital Authority Act of 1941 provided for the financing of hospitals to be built by the county hospital authority through the issuance and sale of securities of its own.

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I assume that you have a county attorney and that you have discussed the matter with him. If so, you should be guided by his advice and counsel, for by relying on his advice, and his advice only, will you be protected in your actions.
March 26, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
You request my opinion as to the following question:
"Can the State Department of Education legally withhold payments on loans made to employees of the Department by their Credit Union on a payroll deduction, with such withheld payments being made to the Credit Union on written authorization of the employee concerned?"
Act No. 730, Georgia Laws 1964, approved March 10, 1964, provides as follows:
"SECTION 1
"Any department or agency of the State of Georgia is hereby authorized to deduct from the salaries or wages of its employees, designated amounts for the purpose of payment of deposits to a department or agency credit union or the payment of indebtedness to a department or agency credit union, if such department or agency credit union is a corporation and existing under the laws of this State. No such deduction shall be made without the approval of the head of the department or agency. No such deductions shall be made without the written request of the employee, which request shall designate the exact amount which is to be deducted. Any employee who has consented to a deduction is hereby authorized to withdraw from such plan upon two weeks written notice.
"SECTION 2
"The fiscal authorities or other employees of the various departments or agencies will not incur any liability for errors or omissions made in the performance of the agreement between the department or agency and the employee."
It is my opinion that the State Department of Education may legally withhold payments on loans made to employees of the State Department of Education by their credit union, and a payroll deduction be made thereof. However, it should be ascertained that the department or agency credit union is a corporation existing under the laws of the State of Georgia, that the head of the State Department of Education has approved the plan of making payroll deductions on account of loans to employees by the credit union, and that any deduction or withholding is made pursuant to the written request of such employee with the exact designation of amount made in said request.

417
March 31, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
I have your letter requesting my opinion as to the legality or constitutionality of Acts No. 224 and 254 of the Georgia Laws of 1961.
In brief, Act No. 224 empowers the Board of Education of the City of Atlanta to create emeritus offices for retired heads of departments of the Board, and Act No. 254 empowers the City of Atlanta to create certain emeritus offices. Act No. 224 specifically provides in 3 thereof that:
"This Act shall apply to both present and future heads of departments of said Board of Education and to any department head who may have retired as of December 31, 1960, and shall apply to the superintendent of schools who retired from office as such during the year 1960."
It is my understanding that the principal objection to the constitutionality of these acts is directed to the part of 3 just quoted. Accordingly, in this opinion I will address myself thereto, and what is said herein will also cover the other emeritus positions.
As I have stated, I understand that the question has been raised as to whether Act No. 224, as applied to a person already retired from office at the time of the passage and approval of the act, is constitutional. Article VII, Section I, Paragraph II, provides in part as follows:
"1. The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association.
"2. The General Assembly shall not grant or authorize, extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into."
If the purport of the act is to provide a pension or a gratuity for past-due services, then I am of the opinion that the said act would clearly contravene the foregoing provisions of the Constitution. See DeWitt v. Richmond County, 192 Ga. 770 (1941). See also Cole v. Foster, 207 Ga. 416 (1950).
It is elemental that courts are reluctant to declare an act of the legislature unconstitutional, and it is equally the policy of this office to refrain from giving an opinion that an act of the General Assembly of Georgia is unconstitutional unless there are compelling and overriding reasons therefor. See Gray v. McLendon, 134 Ga. 224 (1910).
It is likewise elemental that the General Assembly may in its own discretion create, or empower the creation of, offices and positions of public office. I am of the opinion that the two acts referred to above empower the City of Atlanta and the Board of Education of the City of Atlanta to create certain offices or positions which are

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denominated as emeritus offices. Throughout both acts it is the tenor that new and independent offices may be created and the persons filling such offices have duties to perform. In both acts it is provided that the person holding such emeritus office shall serve in an advisory capacity and that such person may accept any elective or appointive federal, state or county office, only insofar as such employment shall not interfere with his duties as created by the aforesaid acts. It well may be that the emeritus positions provided for in the aforesaid two acts may be one of innocuous desuetude, but this fact would not, in my opinion, prevent the emeritus offices from being offices in fact, which offices are well within the authority of the General Assembly to create.
Chapter 24-26A of the Georgia Code Annotated provides for the position of judge emeritus of the superior court, and it is provided therein that judges who have retired before the passage and ratification of the act may come within the purview thereof. The act provides for emeritus judges of the superior court to render judicial service when called upon, pursuant to the terms of said act. It is my opinion that that chapter is analogous to the acts herein considered.
There appears to be a dearth of law on the subject of emeritus positions, which apparently stems from the fact that the positions are comparatively new in the law. The copious work entitled Words and Phrases does not show any reference to the title "Emeritus."
The case of .Johnson v. Jones, 216 N.W. 584 (S.D. 1927), is quite analogous to the question herein considered. In that case the board of regents of the state college accepted the resignation of the president of the college, and elected him president emeritus with a one-year sabbatical leave and with such duties as the board might designate. The state auditor refused payment of salary to the emeritus president on the grounds, among others, that: (1) he performed no services for the state; (2) any such contract was against public policy; and (3) the action amounted to the granting of a gratuity, gift, reward, or pension in recognition of past services. The Supreme Court of South Dakota held that the board of regents had the authority to create the position of president emeritus and that since the president emeritus stood ready to perform any duties assigned him by the bQard, the same was not a gratuity or pension in recognition of past services. The court stated the following:
"The evidence also shows that election to emeritus positions and the granting of sabbatical leave are in accordance with general custom in higher institutions of learning in this country. Such election and grant are not in violation of either the letter or spirit of the Constitution or statutes. They do not constitute a gratuity or donation, but are for the public purpose, and are sustainable on the ground of their beneficial effect upon the public service. . . ."
While that South Dakota case would not be binding upon the courts of Georgia, it is my opinion that the principles enunciated therein are sound, and would be followed in this State should the same question so arise.

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I therefore conclude, and it is my opinion, that the aforesaid Acts Nos. 224 and 254 of the Georgia Laws of 1961 authorizing the City of Atlanta and the Board of Education of the City of Atlanta to create emeritus positions, as provided therein, are valid and do not contravene the Constitution of Georgia.
March 31, 1964
OPINIONS '1'0 THE DEPARTMENT OF REVENUE
You request my official opinion with respect to the authority of the State Revenue Department to lease its computer equipment to non-governmental users. I understand that the Department has excess capacity or idle computer time available on a second-shift basis. Some of this computer equipment is owned by the Revenue Department and other items of equipment are leased from the manufacturer. If the equipment is to be leased to non-governmental users, the services of employees of the Revenue Department would be required to operate the equipment.
This office made rulings from time to time that State property cannot be leased, sold or otherwise disposed of without legislative authority. Op,s. Att'y Gen. 573 (1954-56).
I do not find that the Legislature has authorized the State Revenue Commissioner specifically to lease, sell or otherwise dispose of State property, .or to sub-lease property which the Revenue Department may have leased.
The equipment here is not "unserviceable property" within the contemplation of Georgia Code Ann. 91-804, nor is it "surplus, obsolete or unused" equipment which may be disposed of by the State Supervisor of Purchases under 40-1902E.
I have heretofore ruled the State Department of Public Welfare has no legal authority to grant an easement which would allow the use of State sewerage facilities by private parties. Ops. Att'y Gen. 657, 658 (1954-56). The lack of authority to lease State-owned facilities becomes more apparent when the leased facilities are to be operated by State employees.
It might be argued that the transaction involved here is a sale of a service rather than a lease of equipment. If this is true, I find no authority for the sale by the Revenue Department of such services, and legislative approval would be necessary for this to be done.
Accordingly, in the absence of legislative authority, it is my opinion that the State Revenue Department and the State Revenue Commissioner would not be authorized to lease the computer equipment of the Department for use by non-governmental organizations. In view of this opinion, it is unnecessary to rule as to whether rental receipts would go into the Revenue Department or into the general treasury.

420
March 31, 1964
COUNTY FINANCES
In your recent letter, you asked if the County Commissioners could borrow money to build a courthouse and jail without a bond issue or, stated otherwise, whether or not a county can borrow money from a private source and, if so, for how long a period.
The Constitution of the State of Georgia has several sections concerned with debt limitation upon counties and municipalities. These are found in Article VII, Section VII, Paragraphs 1, 2, 3 and 4 (Georgia Code Ann. 2-6001, 2, 3 and 4). Summarily, these sections provide as follows:
Section 2-6001limits the debt of a county to seven per cent of the assessed value of all the taxable property therein. This section provides that there may be no new debt incurred without the assent of a majority of the voters in a special election called for that purpose. It does provide for a temporary loan to supply casual deficiencies of revenue, not to exceed one-fifth of one per cent of the assessed value of the taxable property. This section has also been amended to add an additional proviso concerning the use of Federal funds and grants.
Section 2-6002 places a 30-year limit upon any bonded indebtedness incurred under authority of 2-6001 and provides a tax must be levied to pay this indebtedness within the 30-year period.
Section 2-6003 is a provision for additional debt and provides that additional indebtedness may be incurred over the seven per cent limitation imposed by 2-6001 if; (1) the additional debt is not over three per cent of the assessed value of the taxable property, (2) it is payable within five years from the issuance of such debt, (3) a tax is levied prior to issuance sufficient to pay in full the principal and interest when due, (4) the tax is to be separate and used solely for the purposes of retiring such indebtedness, (5) authority has been granted by the General Assembly and (6) it has been affirmatively voted upon.
Section 2-6004 authorizes temporary loans of one year's duration or less. This section gives authority to make such temporary loans to pay expenses for the year provided: (1) the aggregate of such loans does not exceed 75 per cent of the total gross from taxes received during the previous year, (2) the loans are payable on or before December 31 of the calendar year in which made, (3) no loan may be made when loans remain unpaid from previous years, (4) the loans must be authorized by the governing body and recorded in the official minutes (so as to place the public on notice), (5) the loans incurred in any year are not to be in excess of the total anticipated revenue to the county for that year.

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Certain classifications may be made of some of the terms used within the foregoing limitations. There have been many local amendments to the Constitution which have provided for the issuance of bonds or other deviations from the established norm for various counties, however, I do not find that Berrien County has ever secured the passage of such a local amendment. Absent such, you would, of course, be bound by the sections as they are presently written. The courts have interpreted the casual deficiency phrase as covering unexpected expenditures or unforeseen or unexpected deficiencies of revenue, and this would not cover such an expenditure such as you contemplate for the courthouse. Chapter 87-8 of the Annotated Code concerned with revenue anticipation certificates is not involved in these limitations. The courts interpret revenue anticipation certificates as not being a debt within the meaning of the constitutional limitations, since they do not subject the issuing entity to any liability directly, rather its role is more analogous to that of an agent making collection of the monies received and forwarding these to the bond holders. See Town of Fort Oglethorpe v. Catoosa County, 80 Ga. App. 188 (1949).
We really cannot answer your questions completely and would not attempt to advise you as to your methods of financing, but would state the county can borrow money from private sources as provided by 2-6004. This, of course, has to be repaid by the end of that calendar year. Theoretically, though as a practical matter it would seem impossible, you could borrow money to build a courthouse and jail, if you could repay that money within a calendar year. Otherwise, I know of no reasonable method by which you could borrow the monies without a bond issue. The revenue anticipation certificate law would not seem to cover this point absent some elaborate legal fiction designed to show an expected revenue generated through operation of the courthouse and jail. I do not feel it would come within the casual deficiency allowed by 2-6001 and the five-year limitation imposed by 2-6003 would seem to be prohibitive insofar as there might be an attempt to finance it as excess under that section. Therefore, it is my opinion you would find a bond issue necessitated in order to secure adequate monies in order to construct a courthouse and jail.
March 31, 1964
INSURANCE
You have requested my opinion upon the following question:
An agent for an insurance company was furnished printed forms bearing the company's name and described as "official receipts." After his authority was terminated he somehow succeeded in retaining a supply of the forms. Does the principal's failure to obtain a return of the receipt forms constitute the holder such an ostensible agent as to make his acts binding upon the principal?

422
It has been generally held that the burden of proving the agency of a particular person to act for an insurance company is upon the party who affirms that fact, except where such fact sufficiently appears from the evidence. In court, any evidence which is otherwise competent that has a tendency to prove or disprove the fact of such agency on the extent of authority is admissible; and the general rule relating to the weight and sufficiency of the evidence in civil cases applies in determining the weight and sufficiency of the evidence to establish the fact and extent of an agent's authority to represent the insurance company. Slight evidence of acts of agency has been held sufficient to establish the fact that one soliciting insurance was the agent of the company, DeNozeller v. Delaware Ins. Co., 138 N.Y.S. 885. Such agency may be established by evidence that the person alleged to be agent was entrusted with blank policies ready for execution and delivery, Smith v. Farmer Mut. Ins. Assoc., 111 Ga. 737, 36 S.E. 957 (1900); or that the company has acted upon applications forwarded, Allen v. Phoenix Assur. Co., 14 Idaho 728, 95 P. 829 (1908); or information on recommendations given by such person, Hilliard v. Caledonia Ins. Co., 5 Ohio S & C P .. 576, 7 Oh. N.P. 561; or that the company had furnished the agent with stationery bearing the name of the company and the name of the agent, as such, Stewart v. Union Mut. Life Ins. Co., 155 N.Y. 257, 49 N.E. 876 (1898) ; or it may be established by evidence that the company has recognized such person as its agent in other transactions, Capital City Ins. Co. v. Caldwell, 95 Ala. 77, 10 So. 355 (1892), Continental Ins. Co. v. Wrikhan, 110 Ga. 129, 35 S.E. 287 (1900). However, the mere representation of one claiming to act as agent that he is authorized so to act does not constitute any evidence of his agency. Along this line the Georgia Court of Appeals has held that the letterhead of a company with an agent's name on it as general agent is only a declaration of the agent and not admissible to prove agency. Michigan Mutual Life Ins. Co. v. Parker, 10 Ga. App. 697 (1912). The Court distinguished it from the case of Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (1905), in that the letter in the latter case was written on paper containing the letterhead of the corporation, signed by a person described as "general manager," and purported on its face to be in reply to a letter to the corporation and was therefore admissible in evidence.
As in the case of other agencies, the general rule is that an insurance company will be estopped to deny that a certain person is its agent or possesses the authority he assumes to exercise, where it knowingly causes or permits him so to act as to justify a third person of ordinary, careful, and prudent business habits to believe that he is the company's agent or possesses the authority exercised. All the elements of estoppel must be present however and the insured must have been misled by the company, not the agent. The authority must have been actually apparent to the one dealing with the agent and he must have dealt with the agent in reliance on his apparent authority in good faith and in the exercise of reasonable prudence. Rapids Club v. American Union Ins. Co., 35 F. 2d 253 (W.D. La. 1929) ; Mitchell v. Western Fire Ins. Co., 272 Mich. 204, 261 N.W. 300 (1935); American Bankers Ins. Co. v. Lee, 161 Miss. 85, 134 So. 836 (1931).
An agent's authority may be limited and such limitations affect

423
all third persons dealing with him who have knowledge or notice thereof; and any notice of limitation upon the agent's power which a prudent man is bound to regard is equivalent of knowledge to the insured. Davis v. Metropolitan Life Ins. Co., 161 Ga. 568 (1926) ; Reliance Life Ins Co. v. Hightower, 148 Ga. 843, 98 S.E. 469 (1918).
A general insurance agency is presumed to continue until the insured or other parties in interest have been notified of its termination; Cotton States Life Ins. Co. v. Tanner, 180 Ark. 877, 23 S.W. 2d 268 (1930); and such agent may bind the company by his further acts until notice of the revocation of his authority is brought home to persons who have dealt with him. Don G. McAfee, Inc. v. Great America Indem. Co., 289 Mich. 143, 286 N.W. 189 (1939).
In the case of Independence Indem. Co. v. Industrial Realty Co., 178 Ga. 45, 172 S.E. 38 (1934), the Georgia Supreme Court affirmed the judgment of the Court of Appeals holding that where an obligee dealt with an agent having written power of attorney to execute bonds and undertakings for an indemnity company, the indemnity company was estopped to deny liability on the bond upon the ground that the agent's authority to execute it had been revoked, where the obligee had no notice of revocation.
It is evident, therefor, in view of the foregoing decisions that the answer to the question of whether the acts of one who apparently is acting as the agent of another is binding upon the principal depends on the facts in each particular case. It would be impossible to attempt to render an opinion based solely on the facts submitted in your letter alone. Other facts would need to be known such as what efforts the company made to have the former agent to surrender the forms to the company, if any. Also, were the insureds who had previous dealings with the agent notified that this person was no longer an authorized agent of the Company? If all the facts were known and submitted, I would question the advisability of rendering an official opinion one way or another on a matter such as this which hinges solely on the determination of certain facts. The question of their proof and relevancy would have to be determined. I trust, however, that the above information will be of some help to you in this matter.
April 3, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter requesting an opinion as to whether members of a local board of education may be held personally liable for injuries received by a pupil serving on a school safety patrol. In rendering this opinion, it is assured that the local board has authorized the use of such school safety patrols to assist school children in crossing the street en route to and from the school, with the theory of possible liability being that expressed by the city attorney of Chattanooga, Tennessee, to wit: (1) The shield of sovereign immunity generally possessed by members of a school board in connection with

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injuries to pupils is not present in this situation due to the fact that the board exceeds the scope of its legal authority when it authorizes school safety patrols to direct vehicular and pedestrian traffic; (2) In the absence of such immunity a jury may find that the members of the board are individually liable for such "unauthorized action," their negligence consisting of removing minors from a place of safety (the school) and placing them in a position of peril (the streets).
Inasmuch as I do not believe the county board of education acts outside the scope of its authority where it authorizes the use of a school safety patrol (generally composed of "older" students) to assist other students in crossing the streets and generally to provide for their safety and protection in attending the public school, it follows, and it is my opinion, that the doctrine of sovereign immunity is applicable and that members of the board of education can not be held liable for injury to a pupil serving on such patrol either individually or collectively as members of the board.
The rule in Georgia, as in most other American jurisdictions, is that an injured pupil will have no legal remedy against the school board for injuries suffered in connection with his attendance at the public schools and that members of the school board can not be held personally liable for any loss or injury resulting from an act within the scope of their authority or in the exercise of their official discretion. Georgia Code Ann. 23-1502; Duffee, v. Jones, 208 Ga. 639, 645 (1952) ; Krasner v. Harper, 90 Ga. App. 128, 135 (1954) ; Beckanstin v. Drake, 89 Ga. 636, 637 (1954); McLeod v. Pulaski County, 50 Ga. App. 356 (1935) ; Ops. Att'y Gen. 100 (1957).
It must carefully be noted, however, that such immunity applies only where the members act within the scope of their authority. Where the board members act in unison and beyond the scope of their official authority the members of the school board may be personally liable for actionable torts. Beckanstin v. Drake, supra at 637; Duffee v. Jones, supra at 645.
Thus, the principal question in the hypothesis here posed would seem to be reduced to one of whether or not a board of education, in authorizing a school safety patrol, exceeds the scope of its official authority and discretion.
Although I have found no reported decision in point, it is my opinion that the powers granted to the county board of education under the laws of this State are sufficiently broad so as to permit such action by the board. Georgia Code Ann. 32-909 provides that county boards of education shall have power:
"to make all arrangements necessary to the efficient operation of the schools."
It would seem beyond dispute that "arrangements necessary to the efficient operation" of schools must include those methods required to safely convey pupils from their homes to the classroom and back. The local boards are plainly authorized, for example, to operate a system of school bus transportation. Georgia Code Ann. 32-611.

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[Also Sec. 18 of the Minimum Foundation Program of Education Act of 1964- Act No. 523 (S.B. 180)].
It would, therefore, seem entirely proper, in my opinion, to provide for a school safety patrol system to assist pupils in crossing streets and provide for their general protection in the immediate vicinity of the school. The use of such systems would further seem to be sanctioned by custom (having knowledge of the long standing practice, the General Assembly could have terminated it if it so desired), the public benefit of student safety at nominal expense (termination of the practice would require increased police expenses for the same protection), and the positive educational benefit of instilling a sense of responsibility in those students selected to participate in the safety patrol.
For the reasons set forth above, I find it difficult to believe that the courts would find that a county school board exceeds the scope of its authority where it provides for a school safety patrol.
April 3, 1964
OPINION TO THE DEPARTMENT OF REVENUE
You inquire as to the necessity of certificates of title for motor buses owned by a resident of another state but which are used in Georgia in the conduct of an interstate business.
The Motor Vehicle Certificate of Title Act, unofficially codified as Chapter 68-4A, Georgia Code Ann., first mentions such a vehicle in 4 of the Act, "Exclusions," which states:
"No certificate of title need be obtained for:
* * * *
" (4) A vehicle regularly engaged in the interstate transportation of persons or property for which a currently effective certificate of title has been issued in another State."
The wording here is permissive and not mandatory. Therefore, an owner of such a vehicle engaged in interstate transportation which is titled in another State may elect not to title the vehicle in Georgia. See 6 of the Act.
Paragraph (b) of 6 of the Act provides:
"The Commissioner may by rule or regulation exempt from the requirements of this Chapter vehicles owned by nonresident individuals or corporations that are properly titled in the State of such owner's residence...."
(For two reasons, either because there is no reciprocity with the owner State or because the vehicle is used in both interstate and intrastate operations.)

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Here, too, the wording is permiSSive and not mandatory. The regulation of the State Revenue Commissioner 62-7 contains essentially the same provision and it too is permissive. Therefore, this Paragraph (b) of 6 and Paragraph (4) of 4 when read together, as they should be, clearly contemplate that such a vehicle owner may at his option elect not to title the vehicle in Georgia, but may rely on the permissive exemptions and title the vehicle in some other State.
But, suppose the owner of such a bus used in an interstate business but required to be registered in Georgia, is a resident of a foreign State and elects to title his vehicle in Georgia? Without the two provisions cited above he would be required to title his vehicle in Georgia by 6. Section 13 of the Act refusing certificate of title states:
"The Commissioner shall refuse issuance of a certificate of title only if any required fee is not paid or if he has reasonable grounds to believe that:
"(a) The applicant is not the owner of the vehicle; "(b) The application contains a false or fraudulent statement; "(c) The applicant fails to furnish required information or documents or any additional information the Commissioner reasonably requires ; or " (d) The registration of the vehicle stands suspended or revoked for any reason as provided in the motor vehicle laws of this State."
Therefore, the State Revenue Commissioner may refuse to title such a vehicle only on the grounds shown above, and otherwise must accept the application and title the vehicle according to the terms and conditions of the Act as a whole.
April 6, 1964
OPINION TO THE BOARD OF CORRECTIONS
You request my opinion on whether prison labor may be used to repair and maintain private driveways. You state that all driveways in the particiular county which brought the matter to your attention, have been declared part of the public road system by a general resolution adopted by the county commissioners.
It is a matter of common knowledge that prisoners under the jurisdiction of the State Board of Corrections are authorized to labor on the public roads. Georgia Laws 1956, pp. 161, 177, as amended; Georgia Code Ann. 77-318 (d). However, a county's determination of what constitutes a "public road" is subject to examination. Tippens v. Cobb County Parking Auth., 213 Ga. 685, 100 S.E.2d 893 (1957).
In order to create a public road, there must be either a formal proceeding accompanied by a valid transfer of the land, or a dedication to public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944).

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It is my understanding from your letter and enclosures that no title has passed to the county. 'l'herefore, the justification for such a resolution would be that there had been a "dedication to public use" of all driveways in the county. Evidently there has been no express dedication by the landowners of the county, thereby forcing the assumption that this transaction purports to be an "implied dedication." The necessary prerequisites of an implied dedication are established in Dunaway v. Windsor, supra at 707:
"When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote it to a definite public use."
As stated further, in Healey v. Atlanta, 125 Ga. 736, 54 S.E. 749 (1906), "it must appear clearly that there was an intention to dedicate, and that this dedication was accepted by the public authorities...." Although there has been an attempted acceptance in the present case, there was clearly no dedication and the former fails without the concurrence of the latter.
The above discussion is sufficient, but broader and more basic principles are involved and should be set forth at this time.
It must always be borne in mind that prison labor shall be confined solely to public work. Ops. Att'y Gen. 337, 339 (1950-51). As a corollary to this principle, I have previously ruled that "the law of this State, generally, does not favor the use of convict labor in competition with private enterprise." Ops. Att'y Gen. 524 (1954-56). This general proposition is substantiated by Georgia Laws 1956, pp. 161, 177, as amended; Georgia Code Ann. 77-381(b).
Although the practice in question is not expressly prohibited by statute, 102-102(9) of the Code of Georgia of 1933 requires that "in all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Standards required of the courts are imposed also upon me. The nature and content of the prison labor laws make it evident that the Legislature was attempting to eliminate the use of prison labor for private gain and to limit its use to valid public purposes.
I would point out that the criterion is not whether the land on which the prisoner is working is public or private. "A city [is] not prohibited from using prison labor to clear private land ... so long as the transaction was for a good faith public purpose, rather than a subterfuge designed to benefit the private owner." (Emphasis added) Ops. Att'y Gen. 218 (1958-59). The use of prisoners to maintain private driveways is clearly not a "public use" but an attempt to create a legitimate category of prison labor by a "form" transaction based on no substantive reality.
Therefore, I am of the opinion that counties may not use prison labor to repair and maintain private driveways which have not been validly dedicated to public use.

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April 10, 1964
OPINION TO THE COMPTROLLER GENERAL
You have requested my official opinion in answer to the following question:
"May the Industrial Loan Commissioner, by regulation, permit licensed lenders who require credit life insurance, or credit accident and sickness insurance, to charge the borrower a policy writing fee in addition to the premium when the policy is prepared by the lender?"
When the rule and regulation you refer to was established, 6 of the Industrial Loan Act (Georgia Laws 1955, pp. 431, 435, Georgia Code Ann. 25-307) provided, in part, as follows:
"(a) Power to make Rules and Regulations and to Employ Agents and Employees. The said commissioner is hereby granted power and authority to promulgate rules and regulations governing the making of loans of $2,500.00 or less as authorized and regulated under this Act consistent with the terms hereof, and essential to effectuate this Act according to its terms." (Emphasis supplied)
Sections 15 and 16 of the Act (Georgia Code Ann. 25-315 and 25-316) set out the charges which a licensee under the Act may legally collect from a borrower. Section 15 provides in part:
"(c) A licensee may charge and collect from the borrower premiums actually paid or to be paid for insurance obtained for the borrower. A licensee may accept as security on any loan or advance made hereunder insurance on tangible property against substantial risks or loss, and a licensee may accept as such security reasonable insurance on the life, health and/or against accident of the principal party obligated on any such loan or advance . . . and the premiums on such insurance required of the principal party obligated shall be limited to premiums reasonably based upon reliable actual experience and sound insurance practice, and the Commissioner is hereby authorized and directed to promulgate rules and regulations to effectuate this provision in accordance with the spirit and intent thereof. It shall be the duty of the Commissioner from time to time under the foregoing direction, after public hearing in the manner as provided in section 25-306 (a), to determine and promulgate the rates and maximum premium permissible to be charged for life, health and/or accident insurance required as security for a loan made under this chapter, and to make regulations incident thereto necessary to effectuate the same; such premiums when thus established, and as changed from time to time in the manner aforesaid, shall be the maximum effective and permissible charges under this subsection." (Emphasis supplied)

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Section 16 provides, in part, as follows:
"No further charges. No licensee shall change, contract for, or receive any other or further amount in connection with any loans authorized by this Chapter, in addition to those hereinbefore provided. . . ."
There is no provision in the Act to permit a licensee to make a charge to the borrower for a policy-writing fee. The language of 15 (c) clearly prohibits any charge in connection with insurance obtained as security on a loan rather than the actual established premium, and 16 clearly prohibits any charges other than those set out in the Act.
At the time the rule and regulation providing for a charge of 35 for a policy-writing fee was established, the Industrial Loan Act gave the Industrial Loan Commissioner power to promulgate rules and regulations consistent with the terms of the Act and essential to effectuate the Act according to its terms. It is obvious, therefore, that a rule and regulation allowing a charge which was not provided for in the Act but to the contrary was clearly prohibited by the terms of the Act, was not consistent with the terms of the Act.
It is well established, and has been held by the Courts of many jurisdictions including the Georgia Appellate Courts and the United States Supreme Court, that administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. A rule or regulation which is broader than the statute empowering the making of rules, or which oversteps the boundaries of interpretation of a statute by extending or restricting the statute contrary to its meaning, cannot be sustained. To the extent that a regulation is not in conformity with the statute and with controlling judicial interpretation of the statute, it conflicts with the meaning of such statute and so is unauthorized. A rule or regulation to be valid may only implement the law, and regulations are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined. Hynes v. Grimes Packing Co., 237 U.S. 86, 69 S. Ct. 968, 93 L. Ed. 1231 (1949); Addison v. Holly Hill Fruit Products, 322 US. 607, 64 S. Ct. 1215, 88 L. Ed. 1488, reh. den. 323 U.S. 809, 65 S. Ct. 27 89 L. Ed. 645 (1944) ; Peters v. Hobby, 349 U.S. 331, 75 S Ct. 790 99 L. Ed. 1129 (1955); Glustrom v. State, 206 Ga. 734, 58 S.E.2d 534 (1950); Crawley v. Seignious, 213 Ga. 810, 102 S.E.2d 38 (1958) ; Hughes v. Kistler, 76 Ga. App. 885, 47 S.E.2d 663 (1948) ; Southern Co-Operative Foundry Co. v. Drummond, 76 Ga. App. 222 (1947).
It is my opinion, therefore, that the regulation by the Industrial Loan Commissioner permitting licensed lenders to charge a policy writing fee is invalid since it is not in conformity with the Industrial Loan Act which grants the authority to the Commissioner to promulgate rules and regulations, there being no authority in the Act for the establishment of such a regulation and the regulation permitting such a charge being clearly prohibited by the Act.

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April 14, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask for an opmwn as to whether, under existing statutes, children from private and parochial schools can legally be admitted to the reading program to be conducted in the public schools of the State during the summer of 1964.
The program, as you pointed out in your letter, is the result of the General Assembly's having appropriated funds in its 1964 Supplementary Appropriations Bill to provide for a remedial reading program to be conducted in public schools of the State this coming summer for children who have reading disabilities, and who might profit from such a program. It is my understanding that the "Final Plan for Summer Reading Program" attached to your letter has already been adopted by the State Board of Education. It is noted that the plan sets forth some seven mandatory criteria to be used in selecting children for participation and places final responsibility for such selection on the school superintendent of each school system electing to participate [the summer reading program is not "obligatory" upon the local school systems] in the program. The adopted plan also recognizes that the screening procedures to be employed in connection with the above-mentioned seven mandatory criteria will vary from system to system with such methods as standardized reading tests, individual or group intelligence tests, and the use of an "informal reading inventory"-all suggested in the adopted plan as appropriate.
It is my opinion that where a local school system elects to participate in the "summer reading program," its school superintendent (who under the plan has final responsibility regarding the selection of participating students) may legally select children from private and parochial schools as participants, provided that such children can comply with the screening procedures employed by the system in connection with the seven mandatory criteria prescribed by the State Board of Education.
In rendering this opinion, however, I wish to emphasize that it is by no means to be taken as implying any legal duty on the part of any such school superintendent to refrain from using selection procedures which although educationally and administratively reasonable, make it difficult or even impossible, as a practical matter, for pupils not enrolled in the public schools to participate in the summer reading program.
Art. VIII, Sec. I, Par. I of the Constitution of the State of Georgia (Georgia Code Ann. 2-6401) provides that adequate education for its citizens is a "primary obligation of the. State of Georgia" and that the expenses of the same shall be provided for by taxation. Section 32-937 of the Georgia Code Annotated, as amended, further provides:
"Admissions to all common schools shall be gratuitious to all children between the ages of six and nineteen years residing in the districts in which the schools are located."

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And, under the above constitutional and code provisions, it is well settled, for example, that no matriculation charge may be imposed as a condition precedent to the admission of children to a public school forming a part of the general school system of the territory in which they live. See, e.g., Peak v. Board of Education, 177 Ga. 476, 479 (1933); Moore v. Brinson, 170 Ga. 680 (2) (1930).
In view of the right to a free public education, it would seem clear that a child enrolled in a private or parochial school is always free to transfer to a public school maintained by the school system in which he resides and if the school system decided to operate regular classes on a year-round basis, the private school child would be entitled to attend the public school during the summer even though he might intend to return to the private school in the fall. Although the situation here involved is one of a limited summer program available to selected students rather than all students residing within the territory of the participating system, I feel that the above hypothesis regarding transfer rights in a year-round school operation is sufficiently analogous to at least authorize the superintendent to admit private or parochial school students to the summer reading program where such students are able to meet the procedures and criteria used for selection. Inasmuch as the program is to be conducted in the public schools, there would seem to be no problem under Art. I, Sec. I, Par. XIV (Georgia Code Ann. 2-114) of the Georgia Constitution (prohibiting state fund use in aid of any sectarian institution) as would be presented were such courses conducted in the private or parochial schools.
On the other hand, the possibility must be recognized that in selecting educationally and administratively sound screening procedures in connection with the seven criteria1 required by the plan approved by the State Board of Education the superintendent of the local school system might select screening procedures which would make it difficult or even impossible for students not enrolled in the public schools during the 1963-64 school year to qualify.
1. The mandatory criteria for participation under the plan adopted by the State Board of Education are:
(1) Enrolled in grades 1-3 in 1963-64 school year.
(2) Average ability or above (slow-learners included if clearly not reading as well as they are capable of reading).
(3) No serious emotional problems.
(4) Families want children in program and agree to cooperate. (This includes seeing that children are transported to classes and that their attendance is regular.)
(5) Recommended by teacher.
(6) Disabled in reading (children finishing first grade at primer or lower level ; children finishing second grade reading at low second grade or lower level ; children finishing third grade reading at low third or lower level).
(7) Priority-First Grade-Second Grade-Third Grade.

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As an example, the selection procedure for determining whether a prospective participant meets the "average ability" criterion might be a particular intelligence test already given to the pupils of the public schools as a matter of course, but not given in a particular private or parochial school. Inasmuch as the summer reading program is a "public school" program designed essentially to help only those particular public school students whose reading levels are below their individual capacities (thus being highly selective rather than open to all students residing in the territory encompassed by the participating school system), the superintendent, in my opinion, is authorized to select screening procedures without regard as to whether or not the application of procedures (at least where reasonable from an educational or administrative viewpoint) makes it difficult or even impossible for students who have enrolled in a private or parochial school during the 1963-64 school year to participate.
April 20, 1964
COCKFIGHTING
In response to your telephone inquiry as to the laws of Georgia governing the breeding, raising and fighting of game chickens, I am pleased to call your attention to 26-6601 of the Georgia Code Annotated which reads as follows:
"26-6601. Cockfighting or betting on same forbidden. Any person who shall, for sport or gaming purposes, fight or cause to fight any chickens, cocks, or other fowls, or who shall maintain, keep, or carry on any cockpit, or other similar place for the fighting of chickens, cocks, or other fowls, or who shall bet, wager, or stake any sum of money or other thing of value on the result of any such fight or contest in this State, shall be guilty of a misdemeanor."
This law is enforced by indictment of the grand jury or accusation sworn out by the solicitor in the county where such gaming is carried on. The evidence to convict would be the same as any other criminal case in which the law of this State provides that before a person shall be convicted of any crime the jury must be satisfied beyond a reasonable doubt as to the defendant's guilt as charged. This rule of law would be given to the jury in the judge's charge in the case of trial by jury or would apply in case of a waiver of jury trial by the defendant.
April 28, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
This will acknowledge receipt of your letter in which you ask the following questions concerning Act No. 936, the Georgia Health Code,

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passed by the 1964 Session of the General Assembly and approved March 11, 1964:
QUESTIONS:
1. Is the clerk of the superior court required to publish in the official organ of the county notice that members of the county board of health are to be elected by the grand jury in complying with the provisions of Act 936, 88-2?
2. Does Georgia law permit a county board of health created under the provisions of Act 936 - 88-202 to assume any power or discharge any function set forth in Chapter 2 prior to the effective date of the Act, namely, July 1, 1964? and,
3. Does Georgia law require members of county boards of health to take oath of office, loyalty oath, oath to support the Constitution of the United States and the State of Georgia, or any oath as required by public officers and officials before assuming any responsibility of office?
ANSWERS:
1. The clerk of the superior court is required to publish in the official organ of the county notice that members of the county board of health are to be elected by the grand jury in compliance with 59-318 and 59-319 of the Georgia Code Annotated.
2. A county board of health created under the provisions of the Georgia Health Code, 88-202, cannot assume any power or discharge any function prior to July 1, 1964, the effective date of said act.
3. Georgia law requires members of county boards of health to take oaths of office as provided in Georgia Code Ann. 89-301 and 89-302 of the Georgia Code Annotated, and the loyalty oath as provided in 89-311 and 89-312 of the Georgia Code Annotated.
DISCUSSION:
1. Section 59-318 of the Georgia Code Annotated reads as follows:
"Whenever it is provided by law that the grand jury of any county shall elect, select or appoint any person to any office, notice thereof shall be given in the manner hereinafter provided."
Section 59-319, which sets out the method of providing notice of the election, selection or appointment by the grand jury to any office, provides :
"It shall be the duty of the clerk of the superior court to publish in the official organ of the county, a notice that certain officers are to be elected, selected or appointed by the grand jury of said county. Such publication shall be made once a week for two weeks during a period not sooner than 60 days prior to such election, selection or appointment. The cost of such advertisement shall be paid from the funds of the county,

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and it shall be the duty of the governing authority of the county to promptly pay said cost."
These two code sections remain in full force and effect and must be complied with before the grand jury can legally appoint members of the new board under 88-202 of the Georgia Health Code.
2. Section 34 of the Georgia Health Code states that the act shall become effective on July 1, 1964. Until that date the present statutes remain in force, and the existing county boards of health retain their functions and powers. The provision for appointment of county board members prior to the effective date of the subject act was merely a means of providing a smooth transition of functions from the existing board to the newly-appointed board when the act takes effect.
3. Sections 89-311 and 89-312 provide:
"All persons who are employed by and are on the payroll of and the recipient of wages per diem and/or salary of the State of Georgia, or its departments and agencies (with the exception of pages employed by the General Assembly), all counties and cities, school districts and local educational systems throughout the entire State are hereby required to take an oath that they will support the Constitution of the United States and, the Constitution of the State of Georgia."
"The oath required shall definitely state that such persons are not members of the Communist Party and that they have no sympathy with the doctrines of communism."
Since the language of the quoted statute broadly includes all persons employed by and on the payroll, and recipients of wages per diem and/or salary of the State of Georgia and counties or cities, it is my opinion that the above statute would include members of county boards of health and require such members to take the approved oath of loyalty.
Sections 89-301 and 89-302 provide as follows :
"All the provisions of this Chapter shall apply to the oaths of office of all public officers of this State, or those whose offices may be established hereafter, unless the contrary is expressly provided."
"Every public officer, besides the oath of office and the oath prescribed by the Constitution (if any), shall swear that he is not the holder of any public money due this State, unaccounted for; that he is not the holder of any office of trust under the Government of the United States (except postmaster), nor of any one of the several States, nor of any foreign State, and that he is otherwise qualified to hold said office according to the Constitution and laws of Georgia, and will support the Constitution of the United States and of this State; and, if elected by any circuit or district, that he has been a resident thereof for the time required by the Constitution and laws."

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42 AM. JUR. Public Officers 2 (1942) defines a public officer as "An officer [who] is required by law to be elected or appointed, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law." It is my opinion that members of the county board of health are public officers within the meaning of 89-301 and 89-302 of the Georgia Code Annotated, and are required to take the oath as prescribed by said code sections.
April 28, 1964
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter requesting my official opinion as to whether or not there is anything in our Insurance Code which forbids the practice of making gifts of life insurance as advertising devices to stimulate trade and promote good will.
You point out that the insurance companies are charging the full premium and that the sales are being handled through licensed agents who receive commissions and who do not divide those commissions with any unlicensed individuals or corporations. Therefore, it is clear that the donors of the gifts are persons or firms other than, the life insurance companies involved or their agents.
I call your attention to 56-713 of the Georgia Code Annotated, which provides in part:
"56-713. Definitions of unfair methods and practices ccntinued.-In addition to section 56-704, violations of the following provisions are also hereby defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance:
"(1) No insurance company shall issue, or cause to be issued, any policy of insurance of any type or description upon life, or property, real or personal, whenever such policy of insurance is to be furnished or delivered to the purchaser or bailee of any property, real or personal, as an inducement to purchase or bail said property, real or personal, and no other person shall advertise, offer to give free insurance, insurance without cost or for less than the approved or customary rate, in connection with the sale or bailment of real or personal property, except as provided in Chapter 56-27 [Dealing with Group Life Insurance]."
It follows then that should the gift of a life insurance policy be given in order to induce the purchase or bailment of any property, real or personal, and such fact is known to the insurance company issuing the policy, it would constitute a violation of 56-713(1). The last part of this section prohibiting "persons" from offering to give free insurance would also appear to apply since 56-702 of the Code defines "person" as "an individual, corporation, association, partn~r-

436
ship, reciprocal exchange, inter-insurer, Lloyds insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including, but not limited to, agents, brokers, counselors and adjusters." It is my interpretation of this definition that it includes as a "person" any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds insurer and fraternal benefit society, and it also includes as "person" any other legal entity engaged in the business of insurance. It thus is not necessary that any of the individuals, corporations, associations, and partnerships named in the definition be engaged in the business of insurance in order to come within the definition. Therefore, the provision prohibits any donor from giving free insurance .in connection with the sale or bailment of real or personal property, except as provided in Chapter 56-27.
The act or acts forbidden in the broad language of the statute is not limited to an express tie in with the sale or bailment of real or personal property. The use of the words "in connection with" in my opinion extends to and prohibits every commerical effort to stimulate business by gifts of free insurance. Of course, the statute is limited to sales or bailment of real or personal property and this language may make the statute inapplicable to the case of a sale of a service which does not involve the transfer of title or the right to use any real or personal property if there be such a service. The broad language does, in my opinion, extend to a service transaction, where, as an incident to the service some transfer of the title or the right to use and enjoy any item of real or personal property is involved. For example, the mother and her newborn baby in a hospital receives the right to enjoy not only the real estate represented by the hospital room, but also such personal property as food, medicine, bandages, hospital bed, etc., and, of course, some of these items of personal property are actually purchased by the mother and title passed to her.
I also call your attention to 56-712 of the Georgia Code Annotated which provides in part as follows:
"56-712. Anticompact Law.-(1) No person shall either within or outside of this State enter into any contract, understanding or combination with any other person to do jointly or severally any act or engage in any practice for the purpose of, or that has a tendency to or the effect of:
* * * *
" (c) Establishing or perpetuating any condition in this State detrimental to free competition in the business of insurance or injurious to the insuring public."
If the plan or agreement entered into in order to effectuate the gift program comes within this section, then it would, of course, constitute a violation of the statute. Whether or not any such agreement is one that establishes a condition detrimental to free enterprise in the business of insurance or is injurious to the insuring public would depend upon the facts in each individual case.

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I am sure you are aware of 56-708 of the Georgia Code Annotated which gives you authority to bring charges against persons who are engaged in any act or practice not defined in 56-704 or 56-713 which you believe to be a method of unfair competition or an act or practice that is unfair or deceptive and if you believe a proceeding by you would be in the interest of the public. This section apparently gives you the right to challenge any method of competition as being unfair, and therefore you would want to bear this in mind in passing upon the approval of the program involving gifts of life insurance.
It is my opinion, therefore, that a program involving gifts of life insurance as advertising devices to stimulate trade and promote good will are prohibited by the Insurance Code where such a program violates the provisions relating to unfair trade practices as set out in this opinion.
April 29, 1964
COUNTY COMMISSIONERS
This will acknowledge receipt of your letter requesting my unofficial opinion on whether an individual who is presently serving as county commissioner may seek and hold the additional office of State Representative.
I have previously ruled that a member of a county board of education may also serve as a member of the General Assembly. Ops. Att'y Gen. 383. (1954-56). This opinion is applicable in that members of boards of education and county commissioners are both classified as "county officers," whereas members of the General Assembly are classified as state officers as they are compensated for their services by the State Treasurer. Ops. Att'y Gen. 52 (1962).
As I can find no provision of law prohibiting a county officer from serving as a state officer, I am of the opinion that an individual may hold both positions concurrently.
April 30, 1964
OPINION TO THE GOVERNOR
I wish to acknowledge receipt of your letter enclosing a copy of a letter from Honorable Maston O'Neal, Solicitor General of the Albany Judicial Circuit, tendering his resignation as Solicitor General of said circuit, effective May 1, 1964, and requesting of you that he be appointed Solicitor General Emeritus pursuant to applicable laws.
Also attached to your letter is copy of a certificate from Honorable Ben W. Fortson, Jr., Secretary of State, certifying as to the service of Mr. O'Neal, together with a copy of a certificate from Honorable

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Jack B. Ray, State Treasurer, to the effect that Mr. O'Neal has made the required contributions to the Solicitors General Emeritus Fund in order to qualify him for appointment.
You request that I advise you as to whether Mr. O'Neal is eligible for appointment to the office requested, effective May 1, 1964, in view of the provisions of Georgia Laws 1962, pp. 602-604.
The Act cited by you in the 1962 laws provides in 2 thereof as follows:
"No person holding and enjoying, or eligible to hold and enjoy, the pay, perquisites, duties and responsibilities of art emeritus office or emeritus status shall offer or qualify as a candidate in any primary, special, general or other election as a candidate for any other public office provided for under the terms of the State Constitution, or any law made pursuant thereto, unless be shall first tender his resignation to the Governor resigning his said emeritus office or emeritus status, oF eligibility therefor, and upon such tender of said resignation all rights, pay, perquisities, duties, eligibility and responsibilities pertaining to said emeritus office or emeritus status shall cease forthwith and be forfeited. The provisions of this section shall apply to all emeritus offices and emeritus status created under the Act approved March 7, 1957, hereinabove referred to, and any and all other State emeritus offices and State emeritus status now existing by virtue of Acts of the General Assembly of Georgia.' (Emphasis added)
You will note that the prohibition against any person holding and enjoying or eligible to hold and enjoy, the pay, perquisities, duties and responsibilities of an emeritus office or emeritus status, is specifically directed against any person offering or qualifying as a candidate for a public office provided under the terms of the State Constitution.
It is my understanding that Mr. O'Neal qualified to run for the United States Congress from the Second District. Since the office of representative to the Congress of the United States is not provided for under the terms of the State Constitution but under the United States Constitution, it is my opinion that the prohibition set out in 2 cited above does not make Mr. O'Neal ineligible for appointment to the office requested, effective May 1, 1964.
I am pleased to advise you, therefore, that Mr. O'Neal is eligible
for appointment as Solicitor General Emeritus effective May 1, 1964 under the laws of this State, and with respect to qualifying both as to service and required contributions to the Emeritus Fund.
April 30, 1964
COUNTY OFFICIALS
This will acknowledge receipt of your letter requesting my unofficial opinion with respect to whether an employee of the Cobb

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County Water System may also be elected to the Cobb County Board of Education.
Georgia Code Ann. 89-103 prohibits a person from holding more than one county office. It is well established that persons holding elected county positions are considered "county officers," Haulihan v. Saussy, 206 Ga. 1 (1949). However, in an opinion rendered May 13, 1955, I ruled that a teacher of vocational agriculture is a county "employee" and not a county officer. Ops. Att'y Gen. 77 (1954-56). I believe that the above reasoning applies also to the present case as the individual in question is merely "an employee" of the county.
Therefore, I am of the opinion that 89-103 would not prohibit a person from holding the position of an employee of the Cobb County Water System and also that of a member of the Cobb County Board of Education.
May 1, 1964
OPINION TO THE GOVERNOR
I have your letter in which you advise that the Honorable E. L. "Tic" Forrester, Congressman from the Third District of Georgia, has expressed his desire to retire as Congressman effective January 1, 1965, and that Mr. Forrester has requested you to name and appoint him as Solicitor General Emeritus effective January 1, 1965, at which time he will cease to hold office under the Constitution of the United States.
You have enclosed a certificate from the Secretary of State of Georgia indicating the years of service rendered by Mr. Forrester in the capacity of Solicitor of the City Court of Leesburg, and as Solicitor General of the Southwestern Judicial Circuit. You have also enclosed correspondence pertinent to Mr. Forrester's eligibility for appointment to the office of Solicitor General Emeritus.
In reply to your request for my opinion as to whether Mr. Forrester is eligible for the appointment requested effective at the expiration of his present term as Congressman, my answer is the affirmative.
Georgia Laws 1950, at page 229, 1, is as follows:
"Any solicitor-general of the State of Georgia, who on the date of the passage of this Act, shall have been in service as solicitor-general of this State for nineteen (19) years, or who shall thereafter complete nineteen (19) years service as solicitor-General or as solicitor of a city court from which appeals can be taken directly to the Court of Appeals and as a solicitorgeneral, provided that the majority of such time shall have been served as solicitor-general, shall be eligible for appointment to the office of solicitor-general emeritus."
Section 4 of said 1950 Laws, on page 231, contains the following provision:

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"In the event that any solicitor-general shall become eligible for appointment or shall have actually been appointed solicitor-general emeritus and while so eligible for appointment or holding such an appointment shall be elected or appointed to and shall qualify for an office of profit or trust under the Constitution of the United States or of the Constitution of Georgia, his right to appointment as solicitor-general emeritus or to continue to hold such an appointment and to draw the salary fixed therefor under said Act shall be suspended during the period of time that he shall hold such office, provided that upon ceasing to hold such office he shall then be entitled to appointment as solicitor-general emeritus under this Act or to reappointment to said office with all the obligations, rights and duties herein prescribed, his compensation as solicitor-general emeritus in such event to be the same amount received by him as solicitor-general emeritus at the time of his election or appointment and qualification to the office under the Constitution of the United States or of the State of Georgia, or, if not holding an appointment as solicitor-general emeritus then, two-thirds of the amount of compensation received by him as solicitor-general for the calendar year immediately prior to his election or appointment to and qualification for said office under the Constitution of the United States or the State of Georgia,-the purpose of this provision being to permit any solicitor-general who may have been appointed solicitor-general emeritus under this Act or who may be eligible for appointment as solicitor-general emeritus to accept some other office of profit or trust under the Constitution of the United States or of the State of Georgia without affecting his then existing rights under this Act except to suspend the right to hold said office and receive the salary provided therefor while holding such other office. During the time that such solicitor-general is holding another office under the Constitution of the united States or the State of Georgia as herein provided, he shall not be required to make any payments in and to the Solicitors' General Retirement Fund of Georgia."
From the facts in this particular situation as set forth in the attachments which you transmitted to me, it is clear that Mr. Forrester has the requisite number of years to be eligible for appointment as a solicitor general emeritus, and that pursuant to 4 of the 1950 Laws quoted above, Mr. Forrester's right to appointment as Solicitor General Emeritus has been suspended during the time that he held office as United States Congressman from the State of Georgia, and that he shall be entitled to appointment upon his ceasing to hold such office under the Constitution of the United States.
I have been advised by the Treasurer of the State of Georgia that all sums required of Mr. Forrester to be paid into the Solicitors' General Emeritus Fund have been paid. It is with pleasure, therefore, that I advise you that pursuant to the laws of this State Mr. Forrester is eligible to the appointment as Solicitor General Emeritus effective at the expiration of his term of office as Congressman from the State of Georgia.

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May 1, 1964
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
You requested an official opinion regarding the purchase of property situated at 1280 South Lumpkin Street, Athens, Georgia.
The facts as given are as follows:
The University of Georgia sought to purchase real property situated on Lumpkin Street adjacent to the campus of the University. A request was made to the Regents of the University System of Georgia authorizing such purchase. At its meeting held on March 11, 1964, the Board of Regents approved the purchase of this property. Three appraisals were made, the lowest of which was in the amount of $16,000. The property owner at first asked $17,000 for his property on Lumpkin Street. The property is needed by the University since the property is located within the area of the University's plan for development, and it would have been necessary to institute condemnation proceedings to acquire this property had not the owner agreed to sell for $15,000. Should the Board be required to bring condemnation proceedings to acquire said property, the expense of acquiring the property would be considerably more than the agreed price if the proposed sale can be consummated. The owner of the property is a member of the faculty of the University of Georgia.
You ask my opinion as to whether such sale would violate 89-913 of the Georgia Code Annotated.
Restricting this opinion to the particular facts as given, and with no intention of impairing the efficacy of the various "honesty in government" statutes, it is my opinion that the sale of this particular property, as proposed, would not violate 89-913 of the Georgia Code Annotated or any other of the various "honesty in government" statutes.
Section 89-913 of the Georgia Code Annotated states, insofar as is applicable, that:
"It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such official or employee .... "
It would have been necessary for the Regents to condemn the property concerned for the future expansion of the University of Georgia. Under the specific facts it is apparent that here the parties have dealt at arm's length, and there is no possibility of even the taint of possible fraud such as the above statute was enacted to prevent.
Another circumstance to be considered is the fact that the owner will actually suffer a financial loss from the quasi-private sale of

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this property. In view of the appraisals, it is apparent that the owner would receive a larger price for the property if he should force the Regents to condemn the land.
It is therefore my opinion that this sale can be completed, with the clear understanding that this opinion is limited to the specific statement of facts, and that any future question concerning the State's purchasing property from a State employee or official must be decided upon the specific facts of such subsequent proposed transaction.
May 1, 1964
PUBLIC OFFICE
This is in reply to your letter wherein you inquire into the legality of an individual, serving as a member of a county board of education and as a member of the General Assembly of Georgia at the same time.
Although there is no clear-cut answer to the question of whether an individual may legally serve as a member of a county board of education and as a member of the General Assembly at the same time, I am of the opinion that if the matter were presented to the courts the more likely answer would be that the holding of such dual offices at the same time is improper. I am aware that this opinion is in direct conflict with a prior "unofficial opinion" of this office. The discrepancy is caused by the fact that the statute upon which the instant opinion is based was not considered in the former opinion.
At common law there was no inhibition against an individual holding more than one public office at the same time so long as they were not inconsistent with each other. Long v Rose, 132 Ga. 288, 290 (1909). It is also undoubtedly true that as a corollary of the general rule that statutes in derogation of the common law are to be strictly construed, a citizen may not be deprived of the right to hold public office for this or any other reason unless the disqualification is expressly declared by law. See McLendon v. Everett, 205 Ga. 713, 716 (1949) ; Accord, Georgia Code Ann. 89-101 (8).
In Georgia, however, both statutory and constitutional provisions have been enacted which expressly, and also significantly, curtail the common law privilege of holding more than one public office at the same time. While not particularly relevant to the factual situation at hand [i.e., membership on a county school board and in the State Legislature] Georgia Code Ann. 89-103, for example, prohibits the holding of more than one county office at the same time in the absence of express legislative authorization.
With respect to the instant question which involved the legality of a member of the General Assembly (a state official) holding another public office, Ga. Const. art. III, IV, par. VI (Georgia Code Ann. 2-1606) would seem to merit some consideration. This constitutional provision provides, in part:

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"No person holding a military commission or other appointment, or office, having any emolument, or compensation annexed thereto, under this Stat'e~~ .. shall have a seat in either house; ... " [Emphasis added]
McWilliams v. Neal, 130 Ga. 733 (1908) was a case involving the propriety under this provision of an individual serving as a member of a county board of education and also as a member of the General Assembly at the same time. Unfortunately, however, the case was disposed of by the Supreme Court of Georgia under the peculiar facts there involved without answering the crucial question of whether or not membership on a county school board was a "State Office" for the purposes of this particular constitutional provision [the Court expressly noting that this question had not been reached]. Nor has any subsequent decision been located which deals with this precise constitutional question of whether membership on a county school board is an office "under this State." In view of the fact that members of county boards of education have been held to be county officers in decisions not involving this constitutional provision, see e.g., Culbreth v. Cannady, 186 Ga. 444, 447 (1929); Stanford v. Lynch, 147 Ga. 518, 519 (1918), it may reasonably be anticipated that consistency would lead the courts to conclude that membership on a county school board is not an office "under this State" and hence may be held by a member of the General Assembly. Until the matter
is judicially resolved, however, some uncertainly will continue to exist,
in that a finding to the contrary (or in other words, that for the purposes of this specific constitutional provision a county school board member is an officer "under the State,") is not inconceivable.
But regardless of whether or not membership on a county school board and in the General Assembly at the same time is violative of the above discussed constitutional provision, I am inclined to believe that holding these two offices at the same time, if tested in the courts, would very likely be held to be illegal under Georgia Code Ann. 89101. That section provides, inter alia:
"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... "
* * *
"4. Holding other offices.-Persons holding any office of profit or trust under ... either of the several States ..."
The essential question in determining whether or not this provision applies would seem to lie in whether the term "either of the several States" includes this State. That the term is broad enough to cover this State and thus render any person holding an office of profit or trust under the government of Georgia ineligible to hold any other civil office in this State was argued before the Supreme Court in Long v. Rose, 132 Ga. 288, 291 (1909). The Court indicated at page 292 of the reported decision that this position might be correct, but decided the case on other grounds. Although no subsequent decision

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in point has been found, I am of the opinion that if the matter were squarely presented, the courts more likely than not would hold that the term does embrace all of the several States, including this one. The word "either" has been defined as meaning "each," Webster's Third New International Dictionary (1961), p. 728, as well as "any," 14 Words and Phrases, p. 728, and as stated in Black's Law Dictionary, Fourth Edition, at p. 607, the term is often used
"with reference to more than two, in which case it may mean each or any." [Emphasis added]
In view of the all-inclusive meaning of the word, I think the courts would conclude the phrase "either of the several States" is sufficiently broad to include Georgia as well as any of the forty-nine other States in the Union.
Assuming the courts would so define the term in question, it would then follow that Georgia Code Ann. 89-101 (4) renders a person holding an office of profit by virtue of his being a member of the General Assembly ineligible to held the civil office of membership on a county board of education in the absence of express legislative authorization [as in the case, for example, of many "ex-officio" positions].
It is recognized that the above conclusion is in direct conflict with a previous unofficial opinion rendered by this office. See Ops. Att'y Gen. 52 (1962). The discrepancy stems from the fact that the statute which I believe to be controlling [Georgia Code Ann. 89-101] was not considered in that prior unofficial opinion.
May 4, 1964
OPINION TO THE STATE AUDITOR
In your report of examination of the Regents of the University System of Georgia for the year ended June 30, 1963, on page xxii, you call attention to certain purchases made through the State Supervisor of Purchases from Gillis Brothers, Soperton, Georgia, all of which purchases were paid for in the fiscal year ended June 30, 1963, from the account of the Regents of the University System of Georgia. You point out in your audit report that Mr. Jim L. Gillis, Jr. is a partner in the firm of Gillis Brothers, and is also a member of the Soil Conservation Committee, and that the purchases from Gillis Brothers cited above come within the provisions of the Acts of the General Assembly, quoted in part, as follows:
1. Georgia Laws 1956, pages 61 - 63:
"Section 4. No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member.
* * * *

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"Section 7. Any person violating any provision of this Act shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished as for a misdemeanor."
2. Georgia Laws 1959, pages 34- 44:
"Section 2. Interested persons acting as government agents. Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officier, agent or employee of the State of Georgia, or any agency thereof, or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
Also in the audit report are set out copies of various letters to you from Mr. Hugh Gillis and others explaining the transactions involved.
I have interviewed Mr. Jim L Gillis, Jr. and Mr. Hugh Gillis with respect to the transactions quoted in your audit report, and have obtained an affidavit from Messrs. Gillis.
In view of the sworn facts set out in the affidavit executed by Jim L. Gillis, Jr. and Hugh Gillis, it is my opinion that there has been no violation of the Honesty Acts set out in Georgia Laws of 1956 and Georgia Laws of 1959. It is clear to me that Mr. Jim L. Gillis, Jr., as a member of the Soil Conservation Committee of the State of Georgia, had absolutely no knowledge whatever of the sale and the bid that was submitted by his brother, nor about the award of the sale of Gillis Brothers, based upon a bid figured on actual cost which ultimately resulted in a net loss to Gillis Brothers in the amount of $165.52.
Therefore, it is my opinion that Mr. Jim L. Gillis, Jr. was not the person who engaged in any transaction with the Soil Conservation Committee and he did not for himself or in behalf to the partnership of which he was a member, sell any goods, wares or merchandise, personal property to the State of Georgia, I do not believe that the notions of Mr. Hugh Gillis, a partner in the firm of Gillis Brothers, of which Mr. Jim L. Gillis, Jr. was a partner could or should be imputed to Mr. Jim L. Gillis, Jr. so as to constitute a violation of the Honesty Bill of this State.
It is, therefore, my recommendation that no action be taken be-

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cause of an alleged violation of the aforesaid Honesty Bills by Mr. Jim L. Gillis, Jr.
May 5, 1964
OPINION TO THE STATE BOARD OF BARBERS
This is in reply to your request for my opinion as to what action or remedy the Georgia State Board of Barbers may have in reference to persons engaged in the occupation of barbering and barbers operating a barber shop who have refused or neglected to obtain a certificate of registration for themselves or the shop.
Section 84-402 of the Georgia Code Annotated provides, in part:
"It shall be unlawful for any person to follow the occupation of a barber or manicurist in this State unless he or she shall have first obtained a certificate of registration as provided in this Chapter. It shall also be unlawful for any person or persons to operate a barber shop, barber college or barber school without first having obtained a certificate of registration for such shop or school as provided in this Chapter. Any barber shop, school or college not now in operation shall register with the Joint Secretary, State Examining Board prior to opening...."
Section 84-414 of the Georgia Code Annotated provides that all barber shops shall be registered with the Joint Secretary of the State Examining Boards.
Section 84-9904 of the Georgia Code Annotated provides that any person, barber, barber school or barber college engaging in any of the acts covered in Code Chapter 84-4 and not registered under the provisions of the act shall be guilty of a misdemeanor.
Therefore, in consideration of the foregoing statutory provisions, it is my opinion that any person who engages in the occupation of barbering in this State or who operates a barber shop in this State without being duly licensed by the Georgia State Board of Barbers is guilty of a misdemeanor, and may be prosecuted therefor in the county in which he resides. In the event the Board wishes to prosecute any person under the provisions of 84-9904 of the Georgia Code Annotated as outlined above, the Board should take up the matter with the solicitor general of the county in which the violator resides.
May 6. 1964
OPINION TO THE DEPARTMENT OF AUDITS
After receiving your letter attaching a copy of the audit of the Comptroller General's office, I have reviewed the matter of the

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$11,316.00 expenditure by former Comptroller General Zack Cravey involving expenses for conducting a Junior Fire Marshal Camp at Rock Eagle. You have raised the question of the legality of this expenditure.
On September 19, 1957, I rendered an official opinion holding that such an expenditure was authorized by the Georgia Safety Fire Act of 1949. I later recalled this opinion on November 27, 1957, after the State Auditor raised the question of whether such expenditures were authorized or prohibited under the Constitution of Georgia, although no official opinion was rendered on the constitutional question.
I rendered an opinion on June 30, 1960, 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 92A-735 of the Georgia Safety Fire Act of 1949.
On April 10, 1962, I rendered an opinion upholding the purchase of Fire Marshal Badges for distribution to Junior Fire Marshals as a part of the educational program conducted by the State Fire Marshal.
Subsequently, on May 14, 1962, I rendered an opinion to Governor S. Ernest Vandiver holding in substance that 92A-735 of the Georgia Safety Fire Act did not authorize the purchase of mirrors by the Georgia Safety Fire Commissioner. The mirrors were to have had fire slogans imprinted on them and were to be distributed to the general public. I also ruled in that opinion that in so far as 92A-702 of the Safety Fire Act purported to authorize such an expenditure it was unconstitutional. The ruling on the constitutionality of 92A-702 was necessary in view of its wording, which purported to vest final authority in the Safety Fire Commissioner to interpret and enforce the law, and my ruling affects only that portion of the statute.
The question now to be determined is whether or not the expenditures involving expenses for conducting the Junior Fire Marshal Camp were in violation of the Constitution of the State of Georgia.
My opinion of May 14, 1962, is in part as follows:
"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

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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 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 it involved is a gift or grantuity 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.''
The expenditure in question differs substantially from the mirror expenditure, the latter being a gift of tangible property having as its principal utility its use as a mirror. On the other hand, the expenses in connection with the Junior Fire Marshal Camp provided for an educational endeavor which is authorized by the Ga. Const. art. VII, II, par. I (Georgia Code Ann. 2-5501).
It can readily be seen that such an expense meets the test of whether it is for a public purpose since the primary purpose of the Camp was to educate those Junior Fire Marshals selected by school officials of each of the counties of the State in the importance of fire safety and fire prevention in the public school systems of the State in order that they might go back to their respective communities and put this information to use. Thus, "the welfare of the State as a whole is substantially promoted by or involved in its exercise'.
Here, there is no public purpose set up as a pretense to conceal a private purpose. The Safety Fire Act specifically charges the Safety Fire Commissioner with the duty of carrying on a "Statewide program of fire prevention education in the schools of the State...." ( 92A735) The Junior Fire Marshal Camp was selected as a means of promoting fire safety pursuant to this Act.
My opinion of May 14, 1962, heretofore referred to, contains the following language:
"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."
It is my opinion, therefore, that the $11,316.00 expenditure involving expenses for conducting a Junior Fire Marshal Camp was not

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an illegal expenditure, it being a constitutional and authorized educational expense authorized by 92A-735 of the Georgia Safety Fire Act.
May 6, 1964
OPINION TO THE DEPARTMENT O:F REVENUE
I have received your request concerning an interpretation of Georgia Code Ann. 58-210.
The General Assembly of Georgia added this section in 1964 and it provides:
"58-210. Any raw materials or substances, including but not being limited to sugar of any grade or type, intended for use in the unlawful distilling or manufacturing of any alcoholic, spiritous, vinous or malt beverage are declared to be contraband, and no corporation, firm or individual shall have any property right in or to the same, and whenever any such raw materials or substances so used or about to be used shall be found or discovered, whether in transit, in storage, or at a site of such unlawful distillation or manufacture, by any sheriff, deputy sheriff, revenue agent or any other law enforcement officer, the same are declared forfeited and shall be subject to the following dispositions, or any of them:
(1) Such raw materials or substances, whenever found or discovered at a site of unlawful distillation or manufacture as described herein, may be summarily destroyed and rendered useless by any of the officers herein named without any formal order of the Court or, in the event any such raw materials or substances shall be fit for human consumption, the same may be delivered to the public schools of the county in which seized for use thereby.
(2) Such raw materials or substances, whenever found or discovered in transit or in storage, by any of the officers named herein, shall be seized by said officer and the procedures of notice, condemnation and sole, provided in Code Section 58-207, applicable to vehicles and conveyances, shall be followed." (Georgia Laws 1964, pp. 722, 723)
The Act provides no criminal penalties and no person could be convicted for possession of such substances or materials. For an act to constitute a crime, the statute must in express terms declare such act or conduct to be a violation or that it be punished as a criminal offense. Wood v. State, 219 Ga. 509 (1963).
Raw materials or substances are declared by the Act to be contraband and in my opinion this does not include automobiles or other motor vehicles.
The statute in question provides for the forfeiture of property and must therefore be strictly construed. Bowman v. Davis, 51 Ga.

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App. 478 (1935). Generally, in the construction of statutes, ail words are to be given their ordinary meaning. Georgia Code Ann. 102102 (1). The term "materials" has been defined as follows:
"The substance or matter of which anything is made; matter furnished for the erection of a house, ship, or other structure which enters into and becomes a part thereof...." Black's Law Dictionary, 3rd Edition.
The terms "raw materials" and "substances" mean the ingredients used in making the alcoholic beverage- the things that become a part thereof, such as the sugar or malt or grain.
May 11, 1964
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether court costs incurred in connection with habeas corpus cases tried in the City Court of Reidsville may be paid by the Department of Corrections when submitted as a lump sum due at the end of a year and unaccompanied by a Resolution of the General Assembly authorizing their payment.
You further request my opinion on whether an additional per diem of ten ($10.00) dollars per day for the Clerk's attendance upon court should be paid by the Board of Corrections.
In answer to your first question, I would point out that although such expenditures have been authorized by Resolution of the General Assembly in the past, and although such procedure may be desirable, I can find no legal reason to require a Resolution as a prerequisite to payment of these court costs.
It is my understanding that in all habeas corpus cases heard in the City Court of Reidsville, the costs are actually assessed against the respondent, warden of the State Prison, acting in behalf of the State Board of Corrections. This is permissible under Georgia Code Ann. 50-125:
"The judge hearing the return to a writ of habeas corpus may in his discretion award the costs of the proceeding against either party and may order execution to issue therefor by the clerk."
The costs of these cases are itemized and submitted by the Clerk on a yearly basis and in my opinion should be paid as are other normal expenses. However, as a matter of good business procedure and efficiency, I would suggest that these costs be submitted in the future at more frequent intervals, possibly on a monthly basis.
Your second question, concerning the payment of the Clerk's per diem for attendance upon court, must be answered in the negative. It is my opinion that although the Clerk is entitled to a per diem,

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it is properly collectible from the county rather than the Board of Corrections.
Georgia Code Ann. 24-2727 provides that in civil cases, clerks of the superior courts of this State shall receive ten ($10.00) dollars for each day's service in attendance upon the courts. However, it provides further that "the per diem attendance upon the courts shall be paid from the treasury of the respective counties of this State."
It will be noted that the above section applies to the "superior courts;" however, the Act establishing the City Court of Reidsville (Georgia Laws 1905, p. 335), as amended, provides in 10 that the Clerk of the City Court is to receive the same fees received by the clerks of the superior courts in the various counties.
Although there is some question whether the Clerk is entitled to ten ($10.00) dollars or five ($5.00) dollars, it is sufficient to say that in no case is the per diem collectible from the Board of Corrections.
May 11, 1964
MUNICIPAL LICENSES
In response to your letter requesting my advice on whether a county may assess a tax or license fee on beer retail establishments located within a municipality, I refer you to the following applicable Code section.
Georgia Code Ann. 58-716 (Georgia Laws 1935, p. 76) controls the situation and provides as follows:
"58-716. Municipallicenses.-If any business allowed under the provisions of this Chapter is proposed to be carried on within the corporate limits of a municipality, the applicant for license shall pay to the proper authority, to be designated by the governing body of such municipality, such annual license fee as may be fixed by the said governing body, which license shall apply to and be required for each brewery or place of manufacture and also for each place of wholesale and retail distribution; and it is further provided that when any of the above described businesses are licensed by municipal authority, that no county license fee shall be required by county authority." (Emphasis added)
The above section clearly indicates that a dual taxation is not permissible.
May 12, 1964
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter requesting my official opinion upon a question based upon the following facts:

452
"Charter has recently been granted by the Secretary of State to an insurance company authorizing it to engage in the business of life, accident and sickness insurance. This charter contains a provision that the authorized capital of the corpora~ tion shall be one million dollars and the further provision that the capital stock of this corporation shall consist of one million shares of one dollar par value common stock. This company is at present in the process of obtaining subscription for 250,000 shares of its stock and it has already sold 60,000 shares."
The question presented is whether an insurance corporation whose charter contains the foregoing provisions may perfect its organization and lawfully obtain a license and commence the insurance business upon the subscription and sale of only 310,000 shares of its capital stock or must it first have the entire one million shares subscribed?
Chapter 56-15 of the Insurance Code of 1960 sets out the organizational procedure for Domestic Stock Insurers. Section 56-1504 provides, in part:
"(3) The application for charter shall be signed by the persons applying for the charter and shall state:
* * * *
"(e) If a stock corporation, the authorized capital and the par value of each share, which par value shall be at least $1.00 per share; Provided, however, that after the corporation has operated for three consecutive years the par value may be reduced below $1.00 per share but shall be at least 50 cents par value. Shares without par value shall not be authorized. The capitalization shall not be less than that required of the insurer under the provisions of Chapter 56-3; . " (Emphasis added)
Section 56-306 of the Code provides in part :
"56-306. Capital funds required-(1) To qualify for authority to transact insurance an insurer shall possess and thereafter maintain paid in capital stock (if a stock insurer) or surplus (if a foreign or alien mutual or reciprocal insurer) in an amount not less than $200,000 for each class of insurance in which the insurer will engage, but the maximum for any combination of kinds of insurance shall not be required to exceed $400,000."
Section 56-307 of the Code provides:
"56-307. Expendable surplus required for new insurers.-In addition to the minimum paid in capital (of stock insurers) or minimum surplus (of mutual and reciprocal insurers) required by this Title, an insurer shall possess when first authorized in this State, surplus or additional surplus equal to the larger of $200,000 (stock, mutual and reciprocal insurers) or 50 per cent of its paid-in capital stock (if a stock insurer) or of its surplus (if a mutual or reciprocal insurer) otherwise required under 56-306 for the kinds of insurance to be transacted."

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It can be seen that newly organized life, accident and sickness insurer, in order to qualify for authority to transact insurance, must possess and maintain paid-in capital stock in an amount of at least $200,000 plus an expendable surplus of another $200,000 when commencing business.
Section 56-1504 of the Code, which sets out the requirements of the application for a charter, does not contain a requirement that the application must state the minimum amount of capital with which the corporation will begin business. It only requires that it state the authorized capital, which shall not be less than that required of the insurer under the provisions of Chapter 56-3, and the par value of each share of stock. Since the Code provides the minimum amount of capital with which the insurer may obtain a license and commence business, it would seem that it would not be necessary to provide for a minimum in the application for a charter. It would only be necessary to set the authorized capital in accordance with the provisions of 56-306 and 56-307.
It is my opinion, therefore, that an insurance corporation may perfect its organization and lawfully obtain a license and commence the insurance business provided it meets the capital paid-in and expendable surplus requirements of 56-306 and 56-307. It would not be necessary to have the entire authorized capital stock subscribed even though the charter states no minimum with which the corporation shall begin business, since the provisions of Chapter 56-3 of the Code set the minimum. Your letter states that the company is receiving net $2.70 per share for the 250,000 shares of stock it is now in the process of selling so it appears that with this capital plus the income from the 60,000 shares already sold the company will be well within the capital paid-in and expendable surplus requirements of the Code.
May 14, 1964
OPINION TO THE STATE BOARD OF REGISTRATION FOR FORESTERS
I have your letter requesting my opinion as to the construction or interpretation of certain language contained and set forth in 2 of House Bill No. 322, which was enacted by the General Assembly of Georgia at the 1964 Session.
Section 2 of said act amends 43-215a of the Georgia Code Annotated by adding a section to be designated as 43-215b, which is as follows:
"Any forester making an application for a license as a registered forester within thirty days following the date of approval of this Act shall be eligible for a registration as a registered forester without reference to the requirements set forth in 12(a) of the Act creating the State Board of Regis-

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tration for Foresters, approved February 21, 1951 (Ga. Laws 1951, p. 581), as amended, provided such forester shall have completed service as a forester in a public forest unit for a period of not less than twelve years."
I understand that you specifically wish my opinion as to the meaning and interpretation of the words "in a public forest unit," used in the foregoing statute.
It is an elemental and general rule of law that in construing a statute a court will first seek to determine the legislative intent and to effectuate the same; however, plain, unambiguous language is given its usual import and construction unless such construction would lead to an absurd or impossible result. In Woolford Realty Co. v. Rose, 286 U.S. 319, 52 S. Ct. 568, 76 L.Ed. 1128 (1932), the court stated that the popular or received import of words furnishes a general rule for interpretation of public laws. In Standard Steel Works Co. v. Williams, 155 Ga. 177 (1923), the Supreme Court of Georgia declared:
"When language of a statute consists of common ordinary words, and there is nothing to show any unusual meaning is to be attached thereto, the court cannot deny the language its ordinary usual signification, or give it a forced or strained signification, even to avoid disastrous results."
Webster's International Dictionary, Second Edition, defines the word "public" as:
"Of or pertaining to the people; relating to, belonging to, or affecting a nation, state or community at large. The term public is used in designating the legal character of various acts, rights, occupations, etc., that affect or belong to the collective body of a state or community."
In United States v. Stephens, 208 F. 2d 105 (5th Cir. 1953), the court used the following language:
"It is axiomatic that an action based entirely upon a statute, as the action in this case under Section 3467 avowedly is, must find its warrant in the statute, and courts cannot, upon the pretense of construing it, enlarge its coverage to bring within it those not expressly or by clear intendment embraced within its terms." (Emphasis added)
It is my opinion, having given consideration to the terms of the act, that the words "public forest unit" mean and should be construed to mean, a forest owned and/or operated and controlled by the United States or some department thereof, a state of the United States or some subsidiary or department of a state. It is further my opinion that any person who has not completed service as a forester for a period of not less than twelve years in a forest unit as herein defined does not qualify to become a registered forester under the terms of the act of 1964.

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FEES

May 14, 1964

In your letter you posed the following two questions:
(1) In cases where fines for traffic violations are suspended or dismissed, are the sheriff and ordinary still entitled to court costs from the Fine and Forfeiture account? From Insolvent Fund?
(2) Does a "population bill" remain applicable to a county when the latest official census shows that it is no longer within the population bracket of the law?
It appears to be well established that sheriffs and ordinaries are entitled to fees for all services performed which are compensable under the law. Sikes v. Charlton County, 103 Ga. App. 251 (1961) ; Coop~er v. Lunsford, 203 Ga. 166 (1947). These cases also indicate that the final disposition of the case does not affect the right to fees in any way. However, if the disposition of the case makes unnecessary some act of the sheriff or ordinary, they may not collect for this unnecessary action.
It is also my opinion that fees are collectible from the Insolvent Fund in all instances where a fine does not result from the disposition of the case. In Coop,er v. Lunsford, sup,ra, it was held as follows:
"In the superior court, sheriffs are entitled to costs in cases in which there are no fines paid; the costs in such cases are carried forward and into an insolvent-cost fund."
The case then holds that traffic violation cases before the ordinary are the same as superior court cases, and these costs may be paid "only by and through the creation of an insolvent-cost fund."
As concerns your second question, I must advise you that the "population Act" in question is no longer applicable to your county. If your county has dropped below the minimum population figure, the Act cannot apply to your county as the population figures control its application even though it was intended to specifically benefit your county. In order to place your county within its coverage, it would seem that the population figures must be amended by the General Assembly.

May 18, 1964
OPINION TO THE GOVERNOR
This letter is in response to your request concerning the necessity of granting written authority to institute suit against Glens Fall Insurance Company as bondsman for Mr. L~~~-~~~ and for Mrs. L~~~~~-~~ Mr. L~~~~~~~ and Mrs. L~~~~~~~ formerly held positions, individually, as City Clerk of Ludowici.

456
There are alleged certain misappropriations and shortages in city funds. It has now become necessary for the City of Ludowici to institute suits against the bonding company. The bonds are issued payable to "Governor-State of Georgia."
Section 89-420 of the Georgia Code Annotated (Georgia Laws 1853-4, p. 37; 1959, pp. 411, 412) provides as follows:
"Actions on bonds; persons who may bring; jurisdiction.Suits on bonds taken from public officers may be brought by any person aggrieved by the official misconduct of the officer, in his own name, in any court in this State having jurisdiction thereof, without an order for that purpose. No such suit shall be instituted or maintained in any other State. Except as hereinabove authorized, suits on bonds taken from public officers shall be brought in the name of the Governor, and by his consent in writing, or by the consent in writing of the obligee named in such bond, for the use of such aggrieved person: Provided, however, that no action on the bond of any public officer of the State to recover damages flowing to the State or the public on account of the official misconduct of such officer shall be instituted or maintained unless brought in the name of the Governor for the use of the State and by his written authorization; nor shall any such action on the bond of the State to recover damages flowing to such county or other political subdivision or the public be instituted or maintained unless brought in the name of the obligee in such bond for the use of such political subdivision, and by the written authorization of the governing body of such political subdivision."
It is, therefore, necessary and proper for you to grant written authorization to institute suit against the Glens Falls Insurance Company as bondsman for Mr. L________ and Mrs. L________ ,
May 18, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opmwn as to whether a retail merchant who has more than one place of business is entitled to three per cent of the tax due on the first $120,000.00 of such merchant's annual sales at each place of business as compensation for collecting, accounting for and remitting sales and use taxes under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360, et seq.), as amended by Act Number 535 of the 1964 Session of the General Assembly.
Under the terms of Act Number 535, a merchant's compensation for collecting, accounting for and remitting sales and use taxes is specifically limited to "three per cent (3%) of the tax due and accounted for and remitted to the Commissioner on the first $120,000 of such dealer's annual taxable sales." The Act makes no distinction

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between a merchant whose sales are made at one place and the one whose sales are divided among several places.
It seems clear that the Legislature intended to place an absolute ceiling on the amount of compensation a merchant could receive and not relate the ceiling to his volume of business or the number of stores maintained by him. Any other conclusion would thwart this objective.
May 21, 1964
OPINION TO THE COMPTROLLER GENERAL
This is in reply to your letter advising that the Honorable James J. Saxon, United States Comptroller of the Currency, has recently ruled that a national bank may enter into a loan contract with its borrower customers providing by its terms that the debt will be cancelled in the event of the borrower's death and that the bank may make an additional charge for this provision, may establish a reserve to protect against losses arising out of such contracts, and may determine the amount of such charges and such reserves by use of mortality tables and other actuarial data. You advised that the Comptroller's position is that such a contract is but the exercise of a power which is a necessary part of the banking business.
You have requested my official opinion upon the following question:
"May a national bank operating in Georgia enter into a debt cancellation contract providing that the debt will be automatically cancelled in the event of the borrower's death without complying with Georgia's insurance laws?
"We may assume that the bank in such case makes an additional charge for the debt cancellation clause, that it determines this additional charge on an actuarial basis, that it sets up the funds so charged as a special reserve, and that it charges the cost of cancellations under the clause mentioned to this reserve."
First to be determined is whether a contract of the type described is "insurance" within the definition of Georgia law and if so, the question is then presented as to whether or not the State law upon this subject applies to national banks.
In an opinion dated October 13, 1954, found in Ops. Att'y Gen. 429 (1954-56), I have already ruled that a contract of the type described does constitute insurance. In the case of Attorney General ex rei Monk v. C. E. Osgood Company, 249 Mass. 473, 144 N.E. 371, 35 ALR 1037 (1924), it was held that an undertaking on the part of one selling merchandise on the installment plan to cancel the debt in case the buyer dies before the debt is paid is insurance. This case arose under a statute similar to 56-901, Georgia Code Annotated (1953 Revision) which defined a contract of life insurance. Although the

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1960 Georgia Insurance Code by 56-2501 changed the definition slightly, it does not affect this conclusion.
In a more recent opinion dated February 11, 1964, which interpreted the definition of "life insurance" as defined in the 1960 Georgia Insurance Code, I reached the same conclusion on a similar type contract involving the cancellation of a debt incurred in the purchase of cemetary lots. The principle that such contracts are contracts of insurance as announced in the Osgood case has been followed in other jurisdictions and is the general rule. See United Securities Life Insurance and T. Co. v. Bond, 16 App. D. C. 579; State v. Beardsley, 88 Minn. 20, 92 N. W. 472 (1902) ; Missouri, K. & T. Trust Co. v. Krumseig, 77 Fed. 32 (8th Cir. 1896) ; Missouri K. & T. Trust Co. v. McLachan, 59 Minn. 468, 61 N. W. 560 (1894) ; Ware v. Heath, 237 S. W. 2d 362 (Tex. Civ. App. 1951) ; Barna v. Clifford Country Estates, 143 Misc. 813, 258 N. Y. S. 671, 35 ALR 1037 (1932).
We come next to the question of whether or not the State law upon the subject applies to national banks. A national bank is a corporation, the powers of which are defined and limited by the Acts of Congress authorizing the creation of such institutions. Hansford v. National Bank of Tifton, 10 Ga. App. 270, 73 S. E. 405 (1912) ; Roberts v. National Bank of Tifton, 10 Ga. App. 272, 73 S. E. 407 (1912). National banks are corporations of limited capacity having no powers except such as are given them expressly or by necessary implication by the Acts of Congress passed with relation to such banks; Texas & Pac. Ry. v. Pottroff, 291 U.S. 245, 54 S. Ct. 416, 78 L. Ed. 777 (1934); and are subject to restrictions imposed by such statutes; Longly v. Coons, 280 N.Y.S. 17, 244 App. Div. 391 (1935). More specifically, the so-called National Banking Act (12 U.S.C.A. 24) under which national banks are organized, providing that national banking associations may exercise "all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes ... " is to be regarded when it is sought to determine what are the powers of national banks. Texas & P. Ry. Co. v. Pottroff, supra. At all events it is generally only those powers which are expressly granted by statute, or such incidental powers as are necessary to carry on the business of national banks that are rightfully exercised by such banks. First Nat. Bank v. Missouri, 263 U. S. 640, 44 S. Ct. 213, 68 L. Ed. 486 (1924). The court further held that the National Banking Act did not prevent the maintenance of a quo warranto proceeding by a state in a state court to determine whether a national bank could, in defiance of state law, engage in branch banking. In holding that the bank could not engage in such activities the court said:
"Certainly an incidental power can avail neither to create powers which, expressly or by reasonable implication, are withheld nor to enlarge powers given; but only to carry into effect those which are granted."

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This reasoning was followed in the case of Brannon v. Stark, 82 F. Supp. 614, 618 (D.D.C. 1949) aff'd. 185 F. 2d 871, 882 (D.C. Cir. 1950). The District Court said:
"obviously, no matter how well intended, or even how desirable his action might be, an Executive Officer of the Government may not overstep the statutory limitations on his authority .... The word, 'incidental' means minor, auxiliary, or subordinate to a principal or primary subject. A thing 'incidental' to an express provision is dependent or ancillary to it. The term does not comprehend something additional to and independent of the principal subject matters. It relates solely to matters of a subordinate nature ... forming a part and parcel of the main topic."
There is no mention of insurance or debt cancellation contracts in the National Banking Act except that by the Act of September 7, 1961 (39 Stat. 753), Congress added to the Act a section (12 U.S.C.A. 92) which empowers national banks to act as insurance agents and brokers in communities with a population of 5000 or less.
More recently, in 1962 12 U.S.C.A. 92a was enacted providing that national banks may be specially permitted by the Comptroller of the Currency "to act as trustee, executor, a d m i n i s t r a to r, registration of stocks and bonds, guardian of estates, assignee, receiver, committee of estates of lunatics or in any other fiduciary capacity in which state banks, trust companies, or other corporations which come into competition with national banks are permitted to act under the laws of the particular state in which the national bank is located, when such grant of authority is not in contravention of state or local law. It is further provided that whenever the laws of the state authorize or permit the exercise of any or all of the foregoing powers by state boards, trust companies, or other corporations which compete with national banks, the granting to, and the exercise of such powers by, national banks shall not be deemed to be in contravention of state or local law within the meaning of the statute."
It is plain that the purpose of Congress in giving the power to grant authority to national banks to act as fiduciaries was to enable them to compete with state banks in the same field. Breedlove v. Freudanstein, 89 F. 2d. 324 (5th Cir. 1937), 112 ALR 777, cert. den. 302 U. S. 701, 58 S. Ct. 20, 82 L. Ed. 541 (1937). But equality of right to national banks to act as fiduciaries is all that the statute provides, and when acting as such, they must act in conformity with the laws of the state in which they are located and which regulate its acts and functions. In re Trusteeship, of First Minneapolis Trust Co., 202 Minn. 187, 277 N. W. 899 (1938) ; First Nat. Bank v. Fellows ex rei. Union Trust Co., 244 U.S. 416, 37 S. Ct. 734, 61 L. Ed. 1233 (1917).
These actions on the part of Congress indicate the lack of power of national banks, as well as the Comptroller of the Currency, to attempt to exercise or extend their lawful powers beyond the bounds as set out in the National Banking Act without extending the Act by specific congressional action. It also shows the intent of Congress in giving national banks the same powers as are exercised by state banks

460
and nothing more. There is nothing to indicate that Congress has intended to place national banks in a more favorable position than state banks. The ruling by the Comptroller of the Currency that national banks have the incidental power to issue debt cancellation contracts is in direct conflict with this intent, as well, as the United States Supreme Court decisions as to the banks' incidental powers.
It has been consistently held that national banks may not, under the guise of "incidental to banking business," enter into an original speculative enterprise. There is no question but that the life insurance business is a speculative business separate and distinct from the business of banking. It has been held that while a national bank has no power to enter an original speculative enterprise, as incident to express powers, it has the right to acquire property and put it in shape for resale provided its primary purpose is to save its debt rather than to speculate in future profits and provided there is reasonable prospect of realization. Atherton v. Anderson, 86 F. 2d 518 (6th Cir., 1936), rev'd. on other grounds 302 U.S. 643, 58 S. Ct. 53, 82 L. Ed. 500 (1937) Also, a national bank can purchase and conduct a business for the purpose of recovering losses but continued conduct of business by the bank is ultra vires. Birdsell Mfg. Co. v. Anderson, 104 F. 2d 340 (6th Cir. 1939). "A national bank may lawfully do many things in securing and collecting its loans, in the enforcement of its rights and the conservation of property previously acquired, which it is not authorizied to engage in as a private business." Cooper v. Hill, 94 Fed. 582 (8th Cir. 1899). Morris v. Third Nat. Bank, 142 F. 25, (8th Cir. 1905), ced. den. 201 U. S. 649, 26 S. Ct. 762, 50 L. Ed. 905 (1906). In the case of First Nat. Bank v. Converse, 200 U. S. 425, 26 S. Ct. 306, 50 L. Ed. 537 (1906) the United States Supreme Court held:
"No express power to acquire stock of another corporation is conferred upon a national bank, but it has been held that, as incidental to the power to loan money on personal security, a bank may, in the usual course of doing business accept stock of another corporation as collateral .... It is clear, however, that a national bank does not possess the power to deal in stocks. The prohibition is implied from the failure to grant the power. First Nat. Bk. v. National Exchange Bank, 92 U.S. 128.
"As no authority, express or implied has ever been conferred by the statutes of the United States upon a national bank to engage in or promote a purely speculative business or adventure ... it follows that the bank had no power to engage in such business by taking stock or otherwise."
It is well established that national banks are subject to state laws, unless those laws infringe the national banking laws or impose an undue burden on the performance of the banks' functions. Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S. Ct. 599, 88 L. Ed. 692 (1944). National banks are subject to laws of the state in which they exist in so far as the state laws do not collide directly with the federal laws and in so far as the state laws do not frustrate the banking policy or impair the position of the banks in discharging their duty as national

461
banks. People v. Franklin Nat. Bank, 305 N. Y. 453, 113 N. E. 2d 796 (1953) ; State v. National Newark & Essex: Banking Co., 31 N.J. Super 246, 106 A. 2d 358 (1954). Lewis v. Fidelity & Deposit Co., 292 U.S.559, 54 S. Ct. 848, 78 L. Ed. 1425 (1934) held that a lien created by Georgia law could be enforced against the assets of a national bank.
"National banks are brought into existance under federal legislation, are instrumentalities of the Federal Government and necessarily subject to the paramount authority of the United States. Nevertheless, national banks are subject to the laws of a state in respect of their affairs unless such laws interfere with the purpose of their creation, tend to enjoin or destroy their efficiency as federal agencies or conflict with the paramount law of the United States. First Nat. Bk. v. Missouri, 263 U.S. 640, 44 S. Ct. 213, 68 L Ed. 486 (1924) ."
Chapter 20, 1011 and 1012 of the McCarran-Ferguson Act (59 Stat. 33, as amended, 61 Stat. 448, U.S.C.A. Title 15) enacted by Congress in 1958 provides in part:
"1011. Declaration of policy. Congress declares that the continued regulation and taxation of the several States of the business of insurance is in the public interest, and that silence on the part of Congress shall not be construed to imposes any barriers on the regulation of taxation of such business by the several States.
"1012. Regulation by State law; Federal law relating specifically to insurance; ....
"(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
"(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . unless such Act specifically relates to the business of insurance.... "
Since there is no provision of the National Banking Act which relates to "the business of insurance," it is difficult to comprehend that the several states would not have the power to subject the national banks within their boundaries to state insurance regulations. The express provisions of the McCarran Act shows unmistakable intent of Congress in declaring that continued state regulation of the insurance business is in the public interest.
It is clear that the application of state insurance laws to the debt cancellation contracts about which you inquire would not interfere with the purpose of the creation of national banks. This is particularly true in view of the United States Supreme Court decisions which hold in substance that national banks have no power to engage in or promote a purely speculative business or venture. This would include such debt cancellation contracts which do constitute a venture into the life insurance business. There is no authority in the National

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Banking Act, either express or implied, which would permit national banks to engage in such an activity.
Neither is there authority for the Comptroller of the Currency to issue a ruling permitting national banks to engage in the life insurance business through the use of debt cancellation contracts. His attempt to do so is direct violation of the McCarran Act and an attempt to do what Congress has not done. The Supreme Court stated in the case of First Nat. Bk. v. Missouri, sup,ra:
"national banking associations have gone on for more than half a century without branches and upon the theory of an absence of authority to establish them. If the non-existence of such branches or the absence of power to create them has operated or is calculated to operate to the detriment of the government, or in such manner as to interfere with the efficiency of such associations as federal agency or to frustrate their purposes, it is inconceivable that the fact would not long since have been discovered and steps taken by Congress to remedy the omission."
It can, therefore, be said with authority that if debt cancellation contracts are a necessary part of banking, as the Comptroller of the Currency has ruled, it is inconceivable that steps would not have been taken by Congress to remedy this omission long before now.
The determination by the Comptroller of the Currency that the use of debt cancellation contracts is not property considered as engaging in the life insurance business is one which he also is without authority to make, such determination being within the proper jurisdiction of the several states as authorized by the McCarran Act. I am not unmindful of the decision of the United States Supreme Court in the case of Securities & Exch. Com. v. Variable Annuity Life Ins. Co., 359 U. S. 65, 79 S. Ct. 618, 3 L. Ed. 640 (1959), in which the court held that the determination of whether certain contracts were contracts of insurance and thus excluded from the provisions of the Securities Act was a federal question. However, in that case the court was construing a federal statute regulating securities and pointed out that some states regulated the contracts in question as insurance contracts and that other states refused to recognize them as insurance contracts. There was a strong dissent in the case by four of the nine Justices. However, I think the facts in that case are distinguished from the facts in the case here in that the states have uniformly held debt cancellation contracts to constitute contracts of life insurance so that the question of whether the contracts possess any of the basic elements of insurance is not involved. We merely have a ruling by the Comptroller that since the contracts are a necessary part of the business of banking that the national banks are not considered to be engaging in the life insurance business when issuing such contracts. In making this ruling the Comptroller has not followed the law and he has therefore exceeded his authority. It has been held that he has no authority beyond that conferred upon him by law. Case v. Small, 10 Fed. 722 (E. D. La. 1881). And his rulings are subject to attack when founded on error of law or mistake. United States Nat. Bank v. Pole, 2 F. Supp. 153 (D. C. Ore. 1982).

463
It is apparent in the light of the foregoing decisions and statutes that national banks have no power to engage in issuing debt cancellation contracts which constitute the business of life insurance. It is equally apparent that the Comptroller of the Currency is in error in ruling that the national banks may lawfully issue such contracts as a necessary part of the business of banking and that the banks in doing so are not engaged in the life insurance business. But even assuming that national banks do have, as the Comptroller of the Currency says they have, incidental powers to engage in the business of insurance, the provisions of the McCarran Act command that such business be regulated by the states. This is particularly true in view of the fact that compliance with state insurance regulations would not constitute an undue burden upon the business of a national bank and further in view of the fact that such regulations do not conflict with any paramount federal statutes.
It is, therefore, my opinion that a national bank operating in Georgia may not enter into a debt cancellation contract providing that the debt will be automatically cancelled in the event of the borrower's death without complying with Georgia's insurance laws.
May 21, 1964
MEDICAL EXAMINERS
This will acknowledge receipt of your letter asking whether the law requires a medical examiner to be attached to the coroner's office of Richmond County.
Georgia Laws 1953, pp. 602, 603, as amended by Georgia Laws 1960, p. 1009, and otherwise known as Georgia Code Ann. 21-202 (4) provides in part as follows:
"The term 'medical examiner' as used in this Chapter shall refer to the licensed physician or pathologist designated by the Director of the State Crime Laboratory and the Director of the Department of Public Health pursuant to sections 21-203 and 21-205 for the purpose of performing post mortem examinations and/or autopsies as required herein."
It is further provided in Georgia Laws 1953, pp. 602, 604, as amended by Georgia Laws 1960, pp. 1009, 1010, otherwise known as Georgia Code Ann. 21-203 (2) (3) :
"(2) The Director of the State Crime Laboratory, together with the Director of the Department of Public Health, shall authorize one or more licensed physicians or pathologists at convenient locations throughout the State to act as medical examiners in performing post mortem examinations and/or autopsies as required by this Chapter. The Director of the Crime Laboratory shall confer with local county officials in making such appointments." (Emphasis added)

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"(3) It shall rest in the sole discretion of the medical examiner to determine whether or not an autopsy or dissection is required: Provided, however, that he shall give due consideration to the opinions of the peace officer in charge regarding the requirements of accepted investigation techniques and the rules of evidence applicable thereto."
The above laws, particularly 21-203 (2), indicate to me that the appointment of medical examiners to serve in the various counties is mandatory.
May 26, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for my opinion regarding a question raised in a letter to you from the Mission President of the Church of Jesus Christ of Latter-Day Saints as to whether a fleet of eighty or ninety compact cars owned by the Corporation of The Presiding Bishopric of The Church of Jesus Christ of Latter-Day Saints and used "for providing transportation to and from church functions and to provide for more people to hear the Gospel through the missionary program" are exempt from State, County and Municipal property taxes.
The exemption provision of the Constitution of the State of Georgia (Article VII, Section I, Paragraph IV; 2-5404, Georgia Code Annotated) provides that "the General Assembly may, by law, exempt from taxation ... places of religious worship or burial and all property owned by religious groups used only for residential purposes and from which no income is derived .... " The same constitutional provision states at the end thereof that: "All laws exempting property from taxation, other than the property herein enumerated shall be voted." The exemption from taxation contained in Georgia Code Ann. 92201 (Georgia Laws 1955, pp. 262, 263) for church property is in the exact words of the aforestated constitutional provision.
In a decision of the Supreme Court of Georgia, The Wardens, etc. of St. Mark's Church v. Mayor, 78 Ga. 541 (1887), rendered when the constitutional exemption spelled out only "places of religious worship or burial" and before the amendment to the Constitution providing for the exemption of "all property owned by religious groups used only for single family residences and from which no income is derived," the Court stated as follows (p. 542) in deciding that a parsonage was not exempt from property taxes:
"It is very manifest that land upon which is a parsonage, although it may belong to a church, is not a place of public worship. The language of the constitution is that the legislature may exempt 'places of religious worship' from taxation; but the legislature cannot exempt a parsonage, it not being a place of public worship. We think, therefore, that the mayor and

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council of the city of Brunswick had a right to assess against this property the value of the improvements which the city had laid down along and across the property; . . . . "
Cars owned by the Corporation of the Presiding Bishopric of the Church of Jesus Christ of Latter-Day Saints used for the purpose of transporting people to and from church functions are not a place of religious worship, within the concept of the Georgia Supreme Court's construction of the Georgia Law and are, therefore, not exempt from State, County and Municipal property taxes.
May 27, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter concerning possible financial grants by your Department's Division for Children and Youth to private school or social welfare agencies. As I understand the situation, it is one where the Division of Children and Youth is assisting certain local groups in the development of demonstration projects relating to daycare services and desires to use certain funds allotted to it by the Federal Government for the purpose of making grants to such private agencies. By your use of the word "grant" I assume that the situation is not one of making payment to the private agencies for services they have or will render to the Division, but is in essence a gratuity.
Based upon the above understanding of the factual situation. I am of the opinion that the Department's Division for Children and Youth can not legally give financial grants to private school or social welfare agencies for the development of demonstration projects relating to day-care services.
It is well settled that the powers of all public officers are defined by law and that a public officer can not properly pay out public money where there is no clear provision of law authorizing such payment. See, e. g., Civil Service Board v. MacNeill, 201 Ga. 643, 644 (1946) ; Freeney v. Geoghegan, 177 Ga. 142 (1) (1933). And as stated in Freeney at p. 145:
"Authority for paying out the public money should be found in some law. One claiming to draw money out of the treasury of the county or the State should be able to point to a law that clearly authorizes the expenditure."
It is true that the involvement of Federal Funds necessitates examination of Federal as well as State Law (Georgia Code Ann. 99209 expressly directs the Division for Children and Youth, as the exclusive state agency named to receive federal grants for child welfare and youth services, to comply with the terms of the federal grants). And it is also true that federal law does authorize the United States Secretary of Health, Education and Welfare to make grants to private nonprofit agencies engaged in child welfare activities. See 42 U .S.C.A.

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726. But I know of no provision of federal legislation which authorize a state public welfare agency to make similar grants. The federal law provides generally that the federal funds alloted for day-care services are to be used under the federally approved state plan developed with respect to such services. See 42 U.S.C.A. 726, 727. Hence, it would seem that the federal law itself returns the question as to whether a particular expenditure is proper or not to an examination of the state law whereunder the federally approved state plan was authorized.
Although the Children and Youth Act of 1963 does permit the Division for Children and Youth to contract for professional services necessary for the discharge of its duties and to hire institutional, professional and other employees on a part-time as well as a full-time basis (Georgia Code Ann. 99-208 (b), and although it permits the use of and payment for any needed services or facilities provided under private auspices with respect to children over whom the Division has legal custody or for whom it is providing care (Georgia Code Ann. 99-211 (i), I am not aware of any authorization for its making a grant (as opposed to making payment for services rendered to it where authorized by law), and I am of the opinion that any statute permitting such an outright grant of financial aid would be violative of Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-5402) which prohibits the General Assembly from granting any donation or gratuity in favor of any person, corporation or association.
For this reason, the proposed grants would appear to be illegal under the factual circumstances indicated in your letter.
May 27, 1964
COUNTIES
This will acknowledge receipt of your letter requesting my advice Dn whether a county may repair and maintain private driveways with .county materials and labor.
The repair and maintenance of private driveways would require the expenditure of county funds derived principally from taxation.
The taxing power of a county is one of specific grant and any tax or expenditure outside of the express objects would be unauthorized. The Constitution of the State of Georgia, Article VII, Section IV, Paragraph I (Georgia Code Ann. 2-5701) enumerates the objects for which counties may levy taxes and nowhere in this provision is there authority to spend county funds to benefit private landowners. Likewise, it would be impossible for the General Assembly to give such power to the counties by virtue of Article VII, Section I, Paragraph II (Georgia Code Ann. 2-5402) which prohibits the General Assembly from granting a gratuity in favor of any person, corporation, or association.

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As further support for my views, I refer you to the Supreme Court decision in Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932), in which it was held that Fulton County could not donate .county funds to the Chamber of Commerce even though this might benefit the public at large. The Court held that the expenditure of funds from "taxation or from other sources" could be made only for the named purposes.
In the final analysis, State funds or county funds can only be used for valid "public purposes" which clearly does not encompass maintaining private driveways.
May 28, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This refers to your letter concerning the failure of any individual to qualify to run for one of the five seats on the Turner County Board of Education in the September primary election. In requesting an opinion as to "how this position will be filled at the expiration of the present term" you appear to assume that no individual will become qualified to run in the general election this November, and the opinion set forth herein is therefore based upon this same contingency.
It is my opinion that the board membership in question will continue to be filled by the individual who now holds the position. Although a member's term in office may generally be thought of as being four years, it actually continues until his successor is duly elected and qualified or until his tenure is ended by death, resignation, incapacitation or such similar circumstance as will create a vacancy in the office.
A local amendment to Article VIII, Section V, Paragraph I of the Constitution of the State of Georgia (Georgia Code Ann. 2-6801), set forth as Georgia Laws 1958, pp. 570-73, provides that the Turner County Board of Education shall be composed of five members elected from the five school districts within the county school system. The local amendment requires the election of Board members to take place on the same day the member of the General Assembly from Turner County is elected (this date being fixed by Georgia Code Ann. 341302 as the Tuesday following the first Monday in November) and also provides that the members shall serve:
"for a term of four years and until their successors are elected and qualified." [Emphasis added]
It also states with regard to "vacancies":
"In case of a vacancy on said board for any cause other than expiration of a term of office, the remaining members of the board shall elect a person to serve for the unexpired term, from the district vacated." See Georgia Laws 1958, pp. 570, 571. As may be seen from the underlined portion of the first quotation from the local amendment, there is a conceptual difficulty in answer-

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ing the precise question you ask, to wit: "how this position will be filled," in that as asked, the question presupposes that there will be a vacancy to be filled upon completion of the normal four-year term of office on December 31, 1964. It is my opinion that this premise of a vacancy coming into being on January 1, 1965, is not valid. The term of office is not a four year term but is for four years "and until their successors are elected and qualified" by the express wording of the local amendment to the Constitution. Moreover, even in the absence of such clear language, it is settled law in this State that where a successor is not elected and qualified the incumbent will hold over and no vacancy exists. Pittman v. Ingram, 184 Ga. 255, 256-58 (1937) ; Pearson v. Lee, 173 Ga. 496, 498 (1931) ; Stephenson v. Powell, 169 Ga. 406, 408 (1929); Shackelford v. West, 138 Ga. 159 (1) (1912). As stated in Stephenson v. Powell:
"Where the legislature creates an office and provides for the election of an officer to fill it for a given term of years, the incumbent will hold over and beyond the fixed term until his successor is elected, qualified and commissioned [citations omitted] . The office does not expire at the expiration of said term, but the elected officer holds over until his successor is commissioned and qualified. Holding over prevents vacancy." See also Thompson v. Talmadge, 201 Ga. 867, 888 (1947).
For the above reason, the office in question will continue to be filled by the present incumbent beyond the completion of the present four-year period and up to and until such time as his successor is duly elected by the people and qualified (in the absence, of course, of any prior vacancy due to death, resignation, etc., in which event the remaining Board members are required to choose a successor to fill the vacancy) .
May 29, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you request an opinion as to whether "day care centers" are subject to the provisions of the Food Service Establishments Act (Georgia Laws 1958, p. 371, et seq.; Georgia Code Ann. 42-1401, et seq.).
I am of the opinion that "day care centers" are subject to the provisions of the Food Service Establishments Act if they serve food to the children in their care.
Georgia Laws 1958, p. 371 [Georgia Code Ann. 42-1401], defines the term "food service establishment" as meaning and including an
"establishment for the preparation and/or serving of meals, lunches, short orders, sandwiches, frozen desserts, or other products. The term shall include ... institutions, both public and private, ... and similar facilities by whatever name called...." (Emphasis added)

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The term "institution" is generally deemed to be an establishment or P'lace for the carrying out of a particular purpose of business, see Black's Law Dictionary, 4th Ed., "Institution," p. 940, and inasmuch as a day care center is defined by the regulations of the Division of Children and Youth as
"any place operated by a person, society, agency, corporation or institution, or any other group wherein are received for pay seven or more children under eighteen years of age for group care, without transfer of custody, for less than twentyfour hours per day." (Emphasis added)
I believe the courts would hold such centers to be institutions within the meaning of the Food Service Establishment Act, and hence subject to the Act's provisions; provided, of course, that they do serve food to the children in their care.
May 29, 1964
OPINION TO THE INSURANCE DEPARTMENT
This is in reply to your letter requesting my offical opinion on the following six questions:
"1. Does an aunt have sufficient insurable interest in the life of her infant niece or nephew, there being no financial dependency between them, to entitle the aunt to apply for and obtain a policy of life insurance upon the life of such niece or nephew?
"2. Under the same circumstances, may a grandmother apply for such insurance?
"3. May the father of a minor child, who may be assumed to be the guardian of the person of the child but not the qualified guardian of its property, execute the written consent on behalf of the child mentioned in Code 56-2407?
"4. Does the fact that the lifetime owner of the policy is a person different from the insured, and probably the beneficiary, constitute a material fact?
"5. Does the fact that the beneficiary has an insurable interest dispense with the need for an insurable interest under the circumstances existing in the applicant and lifetime owner?
"6. What affect, if any, results from the retained right of the lifetime owner to change the beneficiary?"
The pertinent sections of the Insurance Code of 1960, as unofficially codified in the Georgia Code Annotated, relative to the questions presented are as follows:
"56-2404. Insurable interest; personal insurance.-(1) 'Insurable interest' with reference to personal insurance is an

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interest based upon a reasonable expectation of pecuniary advantage through the continued life, health or bodily safety of another person and consequent loss by reason of his death or disability, or a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law.
"(2) An individual has an unlimited interest in his own life, health and bodily safety and may lawfully take out a policy of insurance on his own life, health or bodily safety and have the same made payable to whomever he pleases, regardless of whether the beneficiary so designated has an insurable interest.
"(3) An insurable interest must exist at the time the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.
" (4) Any personal insurance contract procured or caused to be procured upon another individaul is void unless the benefits under such contract are payable to the individual insured or his personal representative, or to a person having, at the time when such contract was made, an insurable interest in the individual insured .... "
"56-2406. Capacity to contract for insurance; minors.-(1) Any person of competent legal capacity may contract for insurance.
"(2) A minor not less than 15 years of age ... may, notwithstanding such minority, contract for ... life insurance ... on his own life or body or the life or body of any person in whom he has an insurable interest .... "
"56-2407. Consent of insured required.-No life or accident and sickness insurance contract upon an individual, except a contract of group life insurance or of group or blanket accident and sickness insurance, shall be made or effectuated unless at the time of the making of the contract the individual insured, being of competent legal capacity to contract, applies therefor or consents in writing thereto, except in the following cases:
* * * *
"(2) Any person having an insurable interest in the life of a minor, or any person upon whom a minor is dependent for support and maintenance, may effectuate insurance upon the life of or pertaining to such minor."
While all the authorities are agreed that an insurable interest of some sort must exist in the case of life insurance, the authorities are not exactly agreed on the question of what constitutes the requisite interest. There are cases which hold that the interest must be a pecuniary one and that near relationship is not, per se, enough. Continental Life Ins. C. v. Volger, 89 Ind. 572 (1883); Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63 (1877). The weight of authority, however, is to a different effect. The general rule supported in substance by most of the cases is that any reasonable expectation of benefit or advantage from the continued life of another creates an

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insurable interest in such life; the advantage or benefit need not be capable of pecuniary estimation, but an insurable interest may be predicated upon any relation which is such as warrants the conclusion that the person claiming an insurable interest has an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured. Connecticut Mut. Life Ins. Co. v. Lucks, 108 U.S. 498, 2 S. Ct. 949,27 L. Ed. 800 (1883); Harden v. Harden, 191 Ky. 331, 230 S. W. 307, 17 ALR 576 (1921) ; Wamoch v. Davis, 104 U. S. 775, 26 L. Ed. 924 (1882).
In all cases there must be a reasonable ground, founded on the relation of the parties to each other, either pecuniary or of blood or affinity, to except some benefit or advantage from the continuance of the life of the insured. Otherwise, the contract is a mere wager by which the party taking the policy is directly interested in the early death of the insured. Crotty v. Union Mut. Life Ins. Co., 144 U. S. 621, 12 S. Ct. 749, 36 L. Ed 566 (1892); Harden v. Harden, supra; Turner w. Davidson, 183 Ga. 404 (1936).
The Georgia decisions, prior to enactment of the 1960 Code, which -contain the definition of an insurable interest, have uniformly held, with few exceptions, that there must be a reasonable expectation of pecuniary gain or advantage through the continued life of another person and consequent loss by reason of his death in order to create an insurable interest in the life of such person. National Life & Ace. Ins. Co. v. Parker, 67 Ga. App. 1 (1942); Turner v. Davidson, 188 Ga. 736 (1939) ; Clements v. Terrell, 167 Ga. 237, 145 S. E. 78 (1928) ; Interstate Life & Ace. Co. v. Frazier, 40 Ga. App. 811, 151 S. E. 529 (1929).
The answers to your first two questions depend upon Georgia decisions interpreting the language "a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law" as found in Georgia Code Ann. 56-2404. There are no such Georgia decisions. The States of Oklahoma, Kentucky, Washington, and Virginia have statutes containing substantially identical wording in their definitions of "insurable interest." Apparently there are no cases in those jurisdictions either which interpret the meaning of the phrase in question so as to tell us as whether an aunt or grandmother would come within this classification.
There is no basis for assuming that the Georgia Legislature, in defining "insurable interest" in 56-2404, intended to broaden the common law definition. While it has been held that children have an insurable interest in the life of their father and that a wife has an insurable interest in the life of her husband, In re Cohen, 230 F. 733 (S. D. Ga. 1916), it has been held that the relationship of uncle and nephew, standing alone, will not support an insurable interest. W. A. Doody Co. v. Green, 131 Ga. 568 (1908) ; 1 Cooley's Briefs on Ins. 290; 3 Am. & Eng. Encyclop,edia of Law 941. It has also been held that a brother has no insurable interest in the life of his sister merely because of their blood relationship alone, but that he must be her heir-at-law or dependent on her in some way, or he must show that the relationship of debtor and creditor exists in order to show an insurable interest. Gulf Life Ins. Co. v. Davis, 52 Ga. App. 464 (1936).

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In the case of McFarlane v. Robertson, 137 Ga. 132 (1911), the court held that the relationship of uncle and niece alone does not create an insurable interest and that in order to be taken out of the wagering class of contracts it must be shown that such facts exist as would create a reasonable expectation on the part of the niece of benefit or advantage to her from the continuance of her uncle's life and of loss by reason of his death. This appears in accord with the general rule that the relationship of uncle and aunt or aunt and nephew and niece is not in itself sufficient to constitute an insurable interest, where there is no reasonable ground to expect support to be furnished by the one to the other. Liberty Nat. Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d. 696, 61 ALR 2d 1346 (1957); Commonwealth Life Ins. Co. v. George, 248 Ala. 649, 20 So. 2d 910, 170 ALR 1032 (1947) ; Prudential Ins. Co. v. Jenkins, 15 Ind. App. 297, 43 N. E. 1056 (1896) ; Metropolitan Life Ins. Co. v. Nelson, 170 Ky. 674, 186 S. W. 520 (1916); Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63, 27 Am. Rep. 321 (1877).
Although it has been held in other jurisdictions that a grandparent has an insurable interest in the life of his or her grandchild, National' Life & Ace. Ins. Co. v. Alexander, 226 Ala. 325, 147 So. 173 (1933) ; Hilliard v. Sanford, 6 Ohio S. & C. P. 449, 4 Ohio N. P. 363, it has not been so held in Georgia that such a relationship alone would create an insurable interest.
In the absence of any decisions to the contrary, it is my opinion that the language, "a substantial interest engendered by love and affection in the case of individuals closely related by blood or by law," as used in 56-2404 was intended to embrace the common law concept of an insurable interest recognized in individuals closely related by blood or by law to the extent that it has been followed in Georgia. That. is to say that the relationships of husband and wife, father and mother, son and daughter, and vice versa would constitute an insurable interest by virtue of their relationship alone, without showing a pecuniary interest or advantage. It is also my opinion that others closely related by blood or law would come within this same classification in cases of special circumstances in which they are substituted for one of the individuals creating this same close relationship. For example, an aunt or grandmother who has taken the place of the mother of a child and is raising it. All other persons, in order to show an insurable interest, must satisfy the first part of 56-2404 relating to a pecuniary advantage.
This conclusion is supported by the United States Supreme Court in the leading case of Warmock v. Davis, supra, in which Mr. Justice Field said:
"It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation; for a parent has an insurable interest in the life of his child, and a child in the life of his parents, a husband in the life of his wife, and a wife in the life of her husband .... But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured."

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The answers to your first two questions therefore are "no."
Your third question, with reference to whether or not the father may execute the written consent on behalf of his minor child, as mentioned in 56-2407, must also be answered in the negative. The statute spells out the requirements that must be met and there is no provision allowing such consent on the part of the father. It does allow persons having an insurable interest in the minor or person upon whom the minor is dependent for support and maintenance to take out insurance upon the life of such minor. Obviously, it was felt that this was sufficient, and in any event, if the Legislature had intended to give a father the right to execute the written consent on behalf of his mino;r children, it must be assumed that a provision would have been inserted allowing it.
The answer to your fourth question, as to whether the fact that the lifetime owner of the policy is a person different from the insured, and is probably the beneficiary, constitutes a material fact, is "yes." This creates a situation where the applicant, the lifetime owner of the policy, has control of the policy and therefore may change beneficiaries at any time during the life of the insured without regard to any consent being given by the previous beneficiary or the insured. Such lifetime owner, however, must satisfy the requirements of 56-2404 (3) with reference to insurable interest as well as 56-2407 with reference to consent of the insured. In order to satisfy 56-2404 (3) the benefits of the policy must be payable to the individual insured or his personal representative, or to a person having, at the time when such contract was made, an interest in the individual insured. In order to satisfy 56-2407 such lifetime owner, in order to come within the exception, must have an insurable interest in the life of the minor whose life is insured. The wording of this statute, "no life insurance ... contract upon an individual ... shall be made or effectuated . . ." clearly would include the applicant who is the lifetime owner regardless of whether such applicant or owner is the named beneficiary in the policy. In view of this the answer to your fifth question is also "no."
In answer to your sixth question, with reference to what affect results from the retained right of the lifetime owner to change the beneficiary, I can see no significant affect that this would have in view of the fact that the lifetime owner must, in addition to the beneficiary, have an insurable interest in the life of the assured. It would take away the rights of the insured to exercise all privileges under the policy and to agree with the insurer as to any change in or amendment to the policy after reaching his majority which he would normally have under the provision of the policy relative to its control.
May 29, 1964
CRIMINAL ACCESSORIES
You inquire as to what warrant and charge would be proper against a person who goes to the scene of automobile accident where

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one of the drivers is under the influence of intoxicants, and takes such driver away from the scene before law enforcement officers can investigate.
First, it is believed we will have to establish a crime, which is a violation of public law (Georgia Code Ann. 26-201). Driving under the influence of intoxicating liquor is a violation of public law (Georgia Code Ann. 68-1625, 68-9927). The penalty is prescribed under 68-9927. Driving unler the influence is a misdemeanor (Georgia Code Ann. 26-101). Those engaged in commission of a misdemeanor are principals. Black v. State, 54 Ga. App. 326 (1936); Moon v. State, 85 Ga. App. 212 (1952).
There are no accessories in a misdemeanor; all who procure, command, aid or abet commission of misdemeanor are regarded by law as principal offenders, and may be indicted as such; indictment may be joint or several, but whether indictment is joint or several, any particular defendant accused therein may be convicted by proof either that he directly and personally enacted a criminal transaction or that he procured, counselled, commanded, aided or abetted the criminal transaction of another, who was the direct and immediate action. Hamilton v. State, 54 Ga. App. 249 (1936); Grant v. State, 47 Ga. App. 234 (1933) ; White v. State, 18 Ga. App. 214 (1916).
For example, the greeter in a gambling house could be indicted and convicted for running a gambling house. Jenkins v. State, 58 Ga. App. 377 (2) (1938) ; Richards v. State, 56 Ga. App. 377 (1937).
The graveman of accessory after the fact is helping the principal personally in his efforts to elude punishment, Smiley v. State, 23 Ga. App. 317 (1918). An accessory is one who is not the chief actor in the offense, nor present at its performance, but is in some way concerned therein, either before or after the act committed (Georgia Code Ann. 26-601). An accessory after the fact is the person who, after full knowledge that a crime has been committed, conceals it from the magistrate, and harbors, assists, or protects the person charged with or convicted of a crime. (Georgia Code Ann. 26-604). Punishment for accessory after the fact, except where it is otherwise provided in the Code, is the same as for a misdemeanor.
Also we find in Smith v. State, 46 Ga. 298 (1872), that the crime must actually have been committed and completed at the time of the assistance, and the guilt of the principal must be shown.
It would, therefore, appear that the intoxicated driver would have to be convicted under Code 68-1625, 68-9927. Then you could charge the person who removed the driver as an accessory after the fact and as principal in the crime of driving under the influence of intoxicating liquor.

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June 3, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
You request my official opinion with respect to whether a person may retain his driver's license pending hearing before you after revocation of his license by your Department for a bond forfeiture in Mayor's Court, Madison, Georgia, for the offense of driving under the influence of intoxicants.
Section 92A-608, Georgia Code Ann., provides:
"(a) Upon ... forfeiture of bond of any of the following offenses ... by or in any court it shall be mandatory upon the Director to revoke said operator's license . . . :
* * * *
(2) Driving a motor vehicle while under the influence of intoxicating liquors. . . ."
Code 92A-422 provides:
"Upon the . . . revocation . . . of any . . . license for cause, a hearing shall be granted on demand before any agent of the Department of Public Safety authorized by the Director to hear the same, ....
"The words . . . 'revocation,' . . . are defined for the purpose of this Chapter as follows :
* * * *
"(b) Revocation means that the licensee's privilege to drive a motor vehicle is terminated. . . ."
The above sections, when read together, require the conclusion that under certain circumstances the law makes it mandatory that the Director revoke a driver's license with the right of the licensee to have a hearing for the purpose of determining whether the license should be reinstated.
The term "revocation" as defined by law is set forth above. This definition is in keeping with the general definition of the word "revoke," which means to recall, and with reference to privileges such as drivers' licenses, to annul, repeal, rescind, or cancel.
Therefore, it is my opinion that when a license is revoked under the provisions of 92A-608, the privileges accompanying the license are immediately terminated with the right of the licensee to have a hearing on the question of reinstatement. The request for a hearing does not stay the revocation.
It is my further opinion that this opinion can be distinguished, on the basis of the statutes involved, from an official opinion rendered October 17, 1949 (Ops. Att'y Gen. 709 (1948-49)), which treated a related subject. However, to any extent that the former opinion may appear to be in conflict with this opinion, the former is overruled for the reasons herein stated.

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June 3, 1964
DRIVER'S LICENSE
This will acknowledge your letter in which you request our unofficial opinion as to whether an order of court with respect to a driver's license takes precedence over the provisions of Georgia Law regarding such licenses.
The laws in force in Georgia have the following priority: 1) Constitution, laws, and treaties of the United States; 2) Constitution of Georgia; 3) Acts of the General Assembly; 4) Local and private acts; and 5) Court decisions. Therefore, it is readily apparent that the Code section takes precedence over the court order.
June 3, 1964
DRIVER'S LICENSE
This will acknowledge receipt of your recent letter in which you request our opinion as to whether the Department of Public Safety can conduct a hearing with respect to the reinstatement of a driver's license after an unsuccessful appeal to the Superior Court from a prior hearing by that Department. Specifically, you asked whether jurisdiction of the matter remains in the court or reverted, after the appeal, to the Department of Public Safety.
Generally speaking, a judgment of a court having jurisdiction of both the parties and the subject matter is binding until set aside, and the judgment of a trial court to which no exception has been taken is the law of the case and binding on both parties. Therefore, it would appear that there is no question of who has jurisdiction over this matter. Apparently, the question has been determined by a court of competent jurisdiction from which no appeal was taken and, therefore, that judgment is conclusive on both the Department of Public Safety and the party seeking the reinstatement of the driver's license.
June 4, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This refers to your letter concerning admission and discharge of juveniles to and from the training schools operated by the Division for Children and Youth. After referring to statutory provisions setting forth the duties and obligations of the Division with respect to such schools, you indicate that a problem exists as to whether commitment authority regarding the schools is vested solely in the

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Division or whether it is shared with the juvenile and superior courts. In particular you have asked:
(1) Whether or not the Children and Youth Act gives the State Board for Children and Youth the right to establish admission and discharge policies in connection with the training schools operated by the Division for Children and Youth.
(2) Whether or not the Division is obligated to accept children "sentenced" by a court to such training schools.
(3) Whether or not the Board can establish a policy whereby all children admitted to the training schools would have to come through juvenile court channels.
(4) Whether or not the Division is required to admit a child to one of its training schools in the event a court commits the child thereto and insists upon immediate commitment.
(5) Whether or not the Board may define admission procedures which will require certain information prior to admission, and may admit children as vacant space becomes available to the schools.
OPINION
(1) Although the action of the General Assembly in repealing the statutory provisions relating to the establishment and operation of the Georgia State Training School for Boys and Georgia State Training School for Girls but failing to repeal certain other code provisions pertaining to the authority of the juvenile and superior courts to commit juveniles to such schools results in a legal situation which is something less than crystal clear, it is my opinion that under the Children and Youth Act the authority to determine admission and discharge policies relating to the training schools operated by the Division for Children and Youth is vested solely in the State Board for Children and Youth.
(2) In my opinion, the Division is not obligated to place children "sentenced" by a court to one of its training schools in such training school.
(3) The Board, if it so desires, may establish a policy whereby all children admitted to the training school must come through juvenile court channels.
(4) The Division is not required to admit a child to one of its training schools in the event a court commits the child thereto and insists upon immediate placement of the child in such school.
(5) The Board may define admission procedures which will require certain information prior to admission and may admit children as vacant space becomes available in the schools.
DISCUSSION
1. Prior to the enactment of the Children and Youth Act of 1963 [Georgia Code Ann. 99-201 to 99-221], there was no ques-

478
tion as to the right of judges of both the superior and juvenile courts to commit delinquent children directly to the Georgia Training School for Boys or Georgia Training School for Girls. With respect to such power on the part of judges of the superior courts, Chapters 77-6 and 77-7 [providing for the establishment and operation of these training schools] expressly set forth such commitment power (see, e.g., 77-602 and 77-620), although it should be noted that even at that time a provision contained in a different code title specified that a male juvenile between 16 and 18 years of age who had been duly convicted of any crime not punishable by death or imprisonment for life and sentenced to the Georgia Training School School for Boys could, in the discretion of the gove.rning body of such school, be subsequently transferred to the State Board of Corrections for placement in a penal institution if his attitude or behavior at the school justified such transfer. See Georgia Code Ann. 24-2435. The power of a juvenile court judge to commit a child to one of the training schools prior to 1963 was similarly spelled out by statute. Georgia Code Ann. 24-2421, in specifying what could properly be included in a juvenile court's order, stated that the child within its jurisdiction could be committed.
"to the custody or to the guardianship of a public or pdvate institution or agency authorized to care for children . . ." (Emphasis added)
and the following code provision, 24-2422, referred to juveniles committed "to any State Training School under the terms of this Chapter."
But 23 of the Children and Youth Act of 1963 expressly repealed those chapters of the 1933 Code providing for the establishment and operation of the Georgia State Training Schools for Boys [Chapter 77-6] and for Girls [Chapter 77-7], with all facilities, institutions, equipment and property of such training schools, as well as all personnel, employees and wards therein, being transferred by the Act to the Division for Children and Youth from their former state departments or agencies. [See Georgia Code Ann. 99-210.] Although it is true that this same statutory provision ( 99-210) declares that the facilities and institutions transferred [i.e., training schools] are:
"hereby reestablished, reconstituted, and shall continue in existence and operation under the jurisdiction and control of the division for the purposes provided for herein.." (Emphasis added) Georgia Code Ann. 99-210 (f).
The underlined words are quite significant in their manifestation of an intention on the part of the General Assembly, especially when considered together with other portions of the Act hereinafter discussed, to continue such schools for altered purposes which necessarily would require altered policies as to admission and other matters.
Under the Children and Youth Act of 1963, the general power of the State Board for Children and Youth to establish policies and

479
regulations concerning admission to the training schools under its control would seem to be beyond question. Section 6 (b) of the Act [Georgia Code Ann. 99-206 (b)] declares:
"The board shall establish rules and regulations for the government, operation and maintenance of all training schools, facilities and institutions now or hereafter under the jurisdiction and control of the board, bearing in mind at all times that the purpose for existence and operation of such schools, facilities and. institutions, and all activities carried on therein, shall be to carry out the rehabilitative program provided for by this Chapter, and to restore and build up the self-respect and. self-reliance of children and youth lodged therein so as to qualify and equip them for good citizenship and honorable employment." (Emphasis added)
And, in addition to the above grant of general authority to establish rules and regulations to affect the stated purposes of rehabilitation, 13 of the Act, in providing for the receipt of juvenile delinquents from a court committing the child to "the Division," expressly gives the Division authority upon diagnostic study to release the child under supervision, place or confine him in any institution or facility under its control [which would of course include the training schools], or to discharge the juvenile from the Division's control when satisfied that such discharge will best serve his welfare and the protection of the public. See Georgia Code Ann. 99-213 (c), (d), (e) and (f).
The above provisions, in my opinion, seem conclusive of the fact that the General Assembly intended, when it transferred the training schools to the Division, that those schools, while reestablished and reconstituted from their predecessor institutions, are to be operated in their continued existence as an integral part of the Division's overall rehabilitation services, with all aspects of their operation [including admission policies and decisions] to be vested solely in the Division.
The only difficulty with regard to this position lies in the fact that while the legislature did repeal Chapters 77-6 and 77-7 of the Georgia Code of 1933 (which relate to the establishment and control of the training schools in question and set forth the commitment power of the superior courts) it failed to repeal or amend either Georgia Code Ann. 24-2435, which refers collaterally to the power of superior courts to sentence male juveniles to the training school for boys, or Georgia Code Ann. 24-2421, 24-2422, which spell out the authority of the Juvenile Courts to commit children directly to such training schools (rather than to the Division for its disposition). It could well be argued, especially with respect to the juvenile

480
courts!, that such statutes are still in effect with respect to the "reestablished" and "reconstituted" schools. Nor is it inconceivable that the courts might so hold! Repeal of prior statutory law by implication is not favored; it is permitted only where the subsequent legislation is clearly inconsistent, and even then the prior statute is repealed only to the extent of the inconsistency. See, e.g., Brinkley v. Dixie Construction Company, 205 Ga. 415, 416 (1949); Morris v. City Council of Atlanta, 201 Ga. 666, 672 (1946) ; Adcock v. State, 60 Ga. App. 207, 208 (1939).
But, notwithstanding the ambiguity existing with regard to the commitment power of the courts, or more particularly with respect to the juvenile courts, it would in my opinion seem the more reasonable view that the General Assembly, when it transferred the training schools to the Division for the stated purpose of integrating them into the overall plan of rehabilitation services of the Division (see the language of Georgia Code Ann. 99-206 [b] already quoted herein), did not intend to undo this action by continuing the prior authority of the courts to commit juveniles directly to the training schools without regard either to the comprehensive plan or to available space or facilities. It is my view that the language of 13 of the Act (Georgia Code Ann. 99-213) which speaks of delinquent children committed by the juvenile courts to the Division for the Division's disposition either to the training schools or to any oth.er facilities which it maintains for rehabilitation purposes is completely inconsistent (especially when viewed in light of the various other provisions of the Children and Youth Act clearly designed to effect a uniform program of the Division for juvenile rehabilitation) with the provisions of the prior statutes authorizing direct commitment by courts to such training schools. For this reason, I believe that any prior statute authorizing direct commitment by a court to a training school is repealed by the necessary implication of the language of the Children and Youth Act setting forth the purposes for which the schools are to be operated and vesting full power in the Division to establish such policies and regulations as it deems necessary to further its comprehensive plan of juvenile rehabilitation.
2. For the same reasons stated in answer to question number one, I do not believe the Division is obligated to place any child received from the courts in one of its training schools whether or not the Order of the Court has "sentenced" or by any other language attempted to place or commit a juvenile to such school directly.
1. Although Georgia Code Ann. 24-2435 does refer in a collateral manner to the power of the superior courts to sentence juveniles to the training schools, the express vesting of commitment authority was contained in the repealed chapters (Chs. 77-6 and 77-7) of the 1933 Code. Thus, in view of Georgia Code Ann. 27-2501 and 27-2506 which provide that felons and misdemeanors are to be punished in penal institutions "except where otherwise provided," it would seem that no such other provision any longer exists to authorize commitment by the superior courts to the training schools operated by the Division.

481
3. Although the Division currently has authority to place a child in its custody in the training camps regardless of whether or not the child was received through juvenile court channels, I am of the opinion that the Board, by appropriate resolution, could limit the use of the training schools to those children who are received through juvenile court channels.
4. Although it appears that Georgia Code Ann. 99-213 does require the Division to accept any child committed by a juvenile court to the Division, I do not believe, for the reasons set forth in answer to the first question herein, that the juvenile court may legally specify which particular training school or the facility the child shall be placed in. As previously pointed out, the method by which a child committed to the Division can best be rehabilitated would seem, under the Act, to be a matter solely within the discretion of the Division.
5. As already pointed out, admission procedures and policies pertaining to the training schools are matters exclusively within the discretion of the Division and its managing and policy making Board.
June 4, 1964
NUISANCES
This is to inform you that the Georgia Department of Public Health is unable to assist you in the solution to your problem concerning operation of poultry houses as the State Health Department has no specific authority dealing with such assistance as you request. It may be, however, that indiscriminate use in the operation of these poultry houses so as to cause stench, filth, etc. in the community will constitute either a public or a private nuisance and afford you a legal remedy therefor.
Under the provisions of 72-101 of the Georgia Code Annotated, it is specifically provided that :
"72-101. Definition in general.-A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man."
You will note that the last sentence of this code section provides that the inconvenience complained of shall not be fanciful or such as would affect only one of fastidious taste, but it shall be such as to affect an ordinary reasonable man.
In determining whether or not a nuisance exists, the court would look to all the evidence-i.e., where the poultry houses are located, how they are operated, what noises, if any, are made, whether or not it disturbs citizens in their homes, whether disagreeable odors exist, etc.

482
The Supreme Court of Georgia held in the case of Coker v. Birge, 9 Ga. 425, 428 (1851), that:
"If one do an act, of itself lawful, which being done in a particular place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on him to find some other place to do that act where it may not be injurious or offensive."
As you can see from the above, to constitute a nuisance it is necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses and which renders the enjoyment of life and property uncomfortable. See also in this connection Holman v. Athens Empire Laundry Co., 149 Ga. 345 (1919) ; Benton v. Pittard, 197 Ga. 843 (1944) ; Poultryland, Inc. v. Anderson, 200 Ga. 549 (1946) ; and Miller, et al v. Coleman, et al, 213 Ga. 125 (1957).
I have recited some principal facts set forth in the above mentioned decisions to give you a more adequate idea of the allegations necessary to be made in order to obtain an order abating this particular operation as a nuisance.
There are other similar decisions which hold that an operation of the kind mentioned in your petition is not a nuisance in and of itself but may be carried on in such a manner as to become one.
A nuisance is subject to abatement as provided in Chapter 72-2 of the Georgia Code Annotated. Generally, this chapter provides for a public nuisance to be abated by the solicitor general of the judicial circuit where such act occurs and for a private nuisance to be abated upon the application of the individual involved. Your particular attention is directed to 72-201, which states:
"72-201. Manner of abatement.-Any nuisance which tends to the immediate annoyance of the citizens in general, is manifestly injurious to the public health or safety, or tends greatly to corrupt the manners and morals of the people may be abated and suppressed by the order of any two or more justices of the peace of the county, founded upon the verdict of 12 freeholders of the same county, who shall be summoned, sworn, and impaneled for that purpose; which order shall be directed to and served by the sheriff of the county or his deputy."
June 5, 1964
OPINION TO THE STATE BOARD OF PROBATION
You request my opinion as to what extent the bonds of the Members, Director, Field Supervisors, and Examiner of the State Board of Probation are liable for the defalcations, malfeasance, misfeasance or nonfeasance of Circuit Probation Officers and/or Field Secretaries, particularly as regards the misappropriation of funds coming into their possession in the performance of their duties.

483
Although there was some question on the point in the past, the recent session of the General Assembly provided a clear-cut answer in an Act approved March 10, 1964 (Georgia Laws 1964, p. 282), which reads as follows:
"Neither the principal nor the surety on the bond of the head of any State department or agency shall be liable for the failure of an employee of any such department or agency to account for any public money coming into the hands of such employee if such employee is bonded in an amount deemed adequate by the head of the department or agency and the State Auditor, and the bond complies with the provisions of this Chapter." (Emphasis added)
As the department head is the principal involved, it is my opinion that this Act clearly absolves you of any responsibility, either on your bond or personally, for misappropriation of funds by your employees provided they are bonded as prescribed by the Act.

June 5, 1964

EUGENIC STERILIZATION ACT

I am pleased to acknowledge receipt of your letter requesting information concerning the eugenical sterilization laws of this State.

I would like to call your attention to the provisions of the Eugenic

Sterilization Act of 1937 (Georgia Laws 1937, p. 414, as amended by

Georgia Laws 1943, p. 202) which provides for such operation only

upon persons specifically named in 99-1303 of the Georgia Code

Annotated, to wit:

'

"99-1303. Surgical operation on recommendation.-When
it shall appear to the superintendent, manager, or director of any State home or hospital for mental or physical disease, or any State colony or institution for the care of the mentally or
physically defective, deficient, or diseased, or the warden or superintendent of any State prison or penitentiary, correction school or reformatory, detention home, or camp, that a patient or inmate under the care of or in such institution, would be
likely, if released without sterilization, to procreate a child, or children, who would have a tendency to serious physical, mental, or nervous disease or deficiency, said superintendent or manager, after a consultation with his medical staff or any medical authority, shall submit to the State Board of Eugenics a recommendation that a surgical operation be performed upon said person for the prevention of parenthood. Such operation shall be a vasectomy for males, and a salpingectomy for females, or some similar operation that would not unsex the patient or inmate thereof."

As you are well aware, the legality of sterilization is one of the most controversial subjects facing qur courts today. Currently, stat-

484
utes in twenty-eight States provide for the eugenical sterilization of various classes of persons such as the feeble-minded, the mentally ill, sexual deviates and habitual criminals. In each of these States, the physician authorized to perform such operation incurs no personal liability if the operation is performed in accordance with the valid law and without negligence.
It is my understanding the Eugenics Board has attempted to include under the present Eugenic Sterilization law sterilization for socio-economic and convenience reasons. As it now stands, there are laws neither approving nor disapproving this aspect. Approval by the courts of such Act can only be demonstrated by presenting an actual case in court and having a decision rendered in favor of such sterilization. Thus far, upon a cursory search of the Georgia case law, I find no doctor has ever been sued following sterilization for socio-economic and convenience reasons. However, doctors and patients both need definite legal protection in this area.
I do not find any other provisions of statute law or any case in Georgia which specifically prohibits operations which might nullify or destroy the reproductive functions.
Georgia Code Ann. 26-1202, 26-1208 and 26-1209 provide punishment for a felony and the crimes of mayhem and castration. Webster defines "castration" as follows:
"Surgical removal of testes; gelding; by extension, spaying. Hence inhibition of function or development of gonads."
14 C.J.S. 27 defines "castration" as: "The act of gelding;" and the definition in Bouvier's Law Dictionary is not significantly different from Webster. It would, however, appear from the history of the crime of mayhem that a vasectomy or salpingectomy, or similar operation not unsexing the patient, would not be construed as "castration."
The cases on the subject of voluntary sterilization seem extremely sparing. There is a short annotation in 93 A.L.R. 573, and an article in Volume 16 of the American Bar Association Journal at page 158 by Miller and Dean on "Liability of Physicians' Sterilization Operations." This article contains a helpful discussion of the physician's possible liability for the crime of mayhem and for the tort of assault and battery. 93 A.L.R. 573 expresses the opinion that in the absence of statutory prohibition, a voluntary vasectomy or salpingectomy for reasons of health would not be against public policy. In such circumstances the tort maxim "volenti non fit injuria" would apply and the doctor would be liable only for negligence.
In the case of Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620 (1934), the therapeutic justification for a vasectomy was that further pregnancies would be dangerous to the health of the plaintiff's wife. The operation was performed on the plaintiff's husband because the operation for the sterilization of a male is simpler and less dangerous than that for the sterilization of a female. The court held that this operation was not contrary to public policy as the husband gave his express consent for the vasectomy.

485
I have found several other decisions dealing with operations to prevent the further procreation of children. However none is so closely in point to your situation as is the Christensen case, and none contains a full discussion of the question of public policy. See also in this connection: McWhorter v. Cox, 239 Ala. 441, 195 So. 435 (1940) ; Ball v. Ball, 160 Fla. 601, 36 So. 2d 172 (1948) ; Parker v. State, 55 A. 2d 784 (Md. App. 1947) ; Milde v. Leigh, 75 N. D. 418, 28 N.W. 2d 530 (1947), and Wiley v. Wiley, 59 Cal. App. 2d 840, 139 P. 2d 950 (1943).
I also call your particular attention to the case of Buck v. Bell, 274 U.S. 200 (1927), which authorized the sterilization of a mentally deficient person. However, under the present terminology of Georgia law, which defines "mentally ill persons," there appears to be some doubt as to whether or not such sterilization law would apply to this class of persons.
I personally feel that if a vasectomy or salpingectomy is to be performed upon an individual committed to the Milledgeville State Hospital under the 1960 "Hospitalization of the Mentally Ill Act," or after July 1, 1964, Chapter 88-5 of the new Health Code, such act should not be done without written consent stating clearly the nature and extent of the operation authorized from a person who is legally qualified to give such consent. It seems to me that a prudent physician would insist upon a consent in writing which is sufficiently inclusive in both specific and general authority to permit him to follow good medical practices in all eventualities. It would also appear advisable to secure the consent of the husband, or wife, as the case might be, together with a written statement to the effect that it has been fully explained to both parties the fact tha such operation and procedure is intended to result in sterility although this result has not been guaranteed.
For your information I am attaching hereto a copy of Chapter 99-13 of the Georgia Code Annotated.
June 8, 1964
OPINION TO THE STATE BOARD OF BARBERS
I have your letter requesting an official opinion to the following three questions:
"1. Is Mr. L________ eligible for teacher's examination without further barber school training? He holds a current master barber license and has furnished evidence of having completed 1250 hours training in a recognized barber school on January 21, 1956.
"2. Is the Board within their legal rights to refuse to give an examination to an applicant who is under the influence of alcohol when he reports to the examination?
"3. Does the Board have the right to require the barber schools

486
to return to the Board the student permits of a student when he discontinues his training in that school?"
In answer to the first question, 84-411 of the Georgia Code Annotated provides in part as follows :
"Provided, further, that any person desiring to teach or instruct in any barber school or barber college shall file his or her application with the Joint-Secretary, State Examining Boards, to the Georgia State Board of Barbers, for examination and shall pay to the Joint-Secretary of the Examining Boards, together with his or her application, the sum of $35 as examination fee, and, upon said examination, shall satisfy the board that he or she holds a current master's license and also holds a diploma or certificate of 1500 hours from a recognized school, and pass an examination satisfactory to said board:"
It therefore follows that inasmuch as Mr. L_ does not hold a diploma or certificate of the requisite number of hours that he is ineligible to take the examination for a teacher's license.
In answer to question 2, the Board may clearly refuse to give an examination to any person who is obviously under the influence of alcohol at the time such person offers to take the examination. The question of whether a person is or is not under the influence of alcohol is sometimes difficult to determine. However, if a person is under the influence of alcohol to such an extent as to be readily apparent, it is my opinion that the Board should refuse to give him the examination.
In answer to question 3, it is my opinion that a barber school does not have the right to retain the permit of a student of the school after such student has discontinued his training at that particular school, and that the Board may, and should, require that the school return to the Board the student permit in such case.
June 8, 1964
FEES
This will acknowledge receipt of your letter requesting my advice on the following questions :
(1) Whether the Clerk of the City Court of Ludowici may receive in a misdemeanor traffic case where cash bond has been forfeited, a fee of $3.00 for services for entering and docketing the accusation, plus $9.00 for services in misdemeanor cases, plus a $1.00 fee for recording the bond forfeiture on the minutes?
(2) Whether in a forfeited cash bond traffic violation case, the sheriff is entitled to a $3.00 fee for the attendance upon the trial of an accused?

487

In answer to your first question, I would point out that the Clerk of the City Court of Ludowici is entitled to the same fees as Clerks of the Superior Courts (Georgia Laws 1921, p. 364). Under Georgia Code Ann. 24-2727, a Clerk of the Superior Court may receive the following:

"24-2727 .... "Criminal cases.

* * * *

"Service in entering and docketing bills of indictment, presentments, no bills and/or accusations and indictments and/or accusation record -------------------------------------------------------- 3.00 "Services in cases where the defendant is tried, or pleads guilty, or there is a settlement ---------------------------------------------- 9.00 "Recording forfeiture of bond on minutes ___________________________ 1.00
"
In Owens v. Maddox, 80 Ga. App. 867 (1950), a defendant entered a plea of guilty and the question was presented whether the Clerk was entitled to $9.00 plus $3.00 or just $9.00. The Court held that "the clerk of the superior court is entitled to a fee of $3 for filing and docketing a bill of indictment in addition to his fee of $9 for services in a criminal case." The Court apparently felt that the $9.00 fee was not a general fee in lieu of the others, but a base fee upon which the remaining could be added if actually earned. Under this reasoning, the $1.00 fee could also be earned.
However, it remains to be determined whether the Clerk is entitled to the $9.00 fee. This question turns upon whether a bond forfeiture case is a "settlement" within the meaning of the Act.
Under the definition of settlement found in Georgia Code Ann. 27-1701, there must be an agreement between the prosecutor and the defendant which is approved by order of the Court on examination into the merits. Also, it must involve a case not punishable by fine or imprisonment. Dunn v. State, 15 Ga. 419 (1854).
Obviously, the present case does not fit into the designated categories of "tried," "plea of guilty," or settlement." Therefore, I am of the opinion that the Clerk is not entitled to the fee of $9.00, but only the $3.00 for docketing the accusations plus the $1.00 for recording the forfeiture of the bonds, making a total of $4.00.
As concerns your second question regarding the Sheriff's right to a $3.00 fee for the attendance upon the trial of an accused where the offender is not brought before the Court, I refer you to Sikes v. Charlton County, 103 Ga. App. 251 (1961) in which the Court held at 253:
"[S] heriffs are entitled to a fee of $3.00 for attendance upon the trial of an accused or attendance before the court when an accused enters a plea of guilty or where an accused is brought before the court and the case against him is not prosecuted. . . . [T] he sheriff would not be entitled to the fee unless the offender was physically brought before the court."

488
Under the authority of the above case, it is my opinion that the Sheriff is not entitled to the $3.00 fee.
June 10, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
You requested an opinion as to whether the brick and material from the Old Soldier's Home can be contributed to the Georgia Divi~ sion of the United Daughters of the Confederacy or anyone else.
To answer your question, we are enclosing herewith an opinion rendered to the Governor on March 18, 1964, concerning the consti~ tutionality of House Resolution 409~929, in which I ruled that said Resolution is clearly and directly in violation of Article VII, Section I, Paragraph II of the Constitution of the State of Georgia of 1945.
It is my opinion that an outright gift of the brick and material from the old Soldier's Home by the State to the United Daughters of the Confederacy would be in violation of the Constitution of this State, and that if the brick and the material in the Old Soldier's Home constitute surplus unserviceable property, the same must be disposed of in accordance with the provisions of the laws of this State with respect to the disposition of surplus property.
June 11, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether the pres~ ent Board of Education of Floyd County, whose term expires on December 31, 1964, may bind a successor Board by electing or ap~ pointing prior to such date, a county school superintendent to serve for a four~year term commencing January 1, 1965.
I am of the opinion that the present Board of Education of Floyd County can not legally bind a successor Board with respect to the constitutional authority given to the Floyd County Board to select its county school superintendnt. In essence, this opinion is based on two distinct grounds, which are:
First: that the "term" of the office of county school superintend~ ent of Floyd County is not fixed by law and is, therefore, held at the pleasure of the Board, which may remove its school superintendent at will; and
Second: that even if the office could be construed to be for a fixed four~year term it would be beyond the power of the present Board to so bind its successor in the selection of a county school superintendent.

489
The specific office of county school superintendent of Floyd County is provided for by a local amendment to the Constitution of Georgia set forth in Georgia Laws 1952, p. 605, et seq. That amendment, after providing for the election of the County Board of Education by the registered and qualified voters of the county living outside the city limits of Rome, Georgia, declares:
"There shall be a county school superintendent who shall be elected or appointed by the County Board of Education of Floyd County. Before any person shall be elected or appointed county school superintendent, he shall have all the qualifications which now, or which may hereafter be prescribed by law for county school superintendents of the State, except that any legal requirements as to residence shall not be applicable. . . ."
Nowhere does this constitutional amendment providing for the office of county school superintendent of Floyd County indicate the existence of any definite or fixed term for the office. That being the case, I believe the question of the power of the present Board of Education of Floyd County to bind a successor board might very well be answered in the negative without further discussion under the general rule in all jurisdictions, including Georgia, that where the term of an office is not fixed by law, the officer holds at the will of the appointing power; the officer, being removable at the pleasure of the appointing power, has no "term" of office in the strict meaning of the word. See Holder v. Anderson, 160 Ga. 433, 437 (1925); Wright v. Gamble, 136 Ga. 376, 378 (1911); State v. Oblink, 172 Neb. 242, 109 N.W.2d 288, 292 (1961) ; Scott v. Philadelphia Parking Auth., 402 Pa. 151, 166 A.2d 278 (1961) ; State v. Williamson, 213 S. C. 1, 48 S.E.2d 601, 605 (1946) ; 67 C.J.S. Officers 43 (1950) ; 99 A.L.R. 381.
On the other hand, I am not unaware of the fact that the Constitution of the State of Georgia provides for four year terms for the elected officers of a county in general, see Art. XI, Sec. II, Par. I (Georgia Code Ann. 2-7901), and provides for the election of county superintendents by the peop,le for four year terms in particular. See Art. VIII, Sec. VI, Par. I (Georgia Code Ann. 2-6901). [See also Georgia Code Ann. 32-1002 with respect to the statutory reflection of this requirement.] It is recognized that argument could be made, and the courts conceivably might hold, that this prior general law under constitution and statute remains applicable to the Floyd County School Superintendent respecting all incidents of the office about which the subsequent amendment is silent, and that inasmuch as the later amendment does not fix the term of office it remains at four years notwithstanding that it is now an appointive office.
It is my opinion, however, that the contrary argument has greater validity. As a general rule, the construction of any constitutional provision is governed by the same principles employed in construing a statute, the cardinal rule being to ascertain and give effect to the intent of the framers and people who adopted it. City of Valdosta v. Single,ton, 197 Ga. 194, 210-11 (1944) ; Stephens v. Reid, 189 Ga. 372, 379 (1939) ; 16 C.J.S. Constitutional Law 15, 16 (1956). In the present situation there can be no doubt whatsoever but that the

490
office of county school superintendent as it exists in the State generally, is to be supplanted in Floyd County by the office as provided for by the local constitutional amendment. Elsewhere the officer is elected by and responsible to the people, while in this particular county he is appointed by and primarily accountable to the Board of Education. Inasmuch as it plainly appears that the local amendment is meant to be a substitute for the prior constitutional and statutory provisions creating such office, and in view of the fact that the fouryear term contained in prior law is inextricably connected to the officer's election by the people (such election manifestly being no longer applicable to Floyd County), it is my opinion that insofar as Floyd County is concerned these prior constitutional provisions which both create the office of county school superintendent and fix this incident of the office (i.e., election by the people for a four-year term) is necessarily repealed by implication in its entirety, even in the absence of any express repugnancy concerning the "term" of the office. As stated in City of Atlanta v. Goodman, 133 Ga. 834, 835 (1936):
"While repeals by implication are not favored and the intention to repeal must be plain and unmistakable, yet a repeal by implication will result where a statute is manifestly intended to cover the subject-matter of a former statute and to act as a substitute for it, notwithstanding the express provisions of the acts are not repugnant."
See also Thornton v. State, 5 Ga. App. 397 (1909).
The prior provisions of general law fixing a four-year term for "elected" county school superintendents generally, being considered inapplicable to the "appointed" superintendent of Floyd County, it follows that the general rule that appointed officials hold office at the will of the appointing authority (in the absence of term fixed by law), would be applicable to the Floyd County Superintendent.
This view of the superintendent's having no "term" but serving at the will of the Board is, of course, in complete harmony with the obvious general intendment of the amendment to place the office of school superintendent in that particular county more completely under the power and control of the school board. Moreover, it is supported by the fact that to prevent repeal of prior general law with respect to "qualifications" of the office, the amendment expressly incorporates present and future general law respecting those matters except for any such laws as may relate to residence requirements. (The view that the omission of any provision fixing the term of office was a legislative oversight rather than intentional is thus obviously weakened by the care taken to preserve the "qualifications" of the office as they otherwise would apply.)
But, while I am of the view that for the reasons stated above the office of county school superintendent in Floyd County has no "term" of office and that the officer, serving at the pleasure of the board, can be removed at any time, I am also of the opinion that even were I to be in error as to this view, with the office being deemed instead to be for a fixed term of four years, the county board of education

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would still not be able to bind a successor board by naming a person to take office for such four-year term on a date subsequent to the end of the appointing board's term.
Although I am unable to rest this second opinion on any Georgia decision (none being found which is directly in point), it does appear that the majority of the courts considering the problem have held that where the period of a contract between a school board and its appointed superintendent or teacher lies wholly within the term of the succeeding board, the contract will not be upheld. See Smith v. School Dist., 42 AA. 368 (Del. Super. Ct. 1898) ; Annot., 70 A.L.R. 794, 805 and cases cited therein; Accord, 67 C.J.S. Officers 102 (1950). Even with respect to a contract which merely extends into the term of the succeeding board, it has in some instances been held that the successor board is not bound. It was held in Rouse v. Benton, 100 S.C. 150, 84 S.E. 533 (1915), by the Supreme Court of South Carolina, for example, that an agreement by two local boards of education to operate their schools jointly for an indefinite period could not bind successor boards, the matter being one of basic school policy which each succeeding board must be free to determine. That the Georgia courts would follow this majority rule where the term lies wholly outside the term of the appointing board is strongly implied by a somewhat analogous situation presented in Horkan v. City of Moultrie, 136 Ga. 561 (1911). There the city council had undertaken by contract to grant plaintiff free water and sewer service for an indefinite period in return for the right to lay sewers through the land of plaintiff. In upholding the right of a subsequent city council to charge plaintiff for water furnished, the Supreme Court of Georgia stated, at p. 563 of the reported decision:
"Powers are conferred upon municipal corporations for public purposes; and as their legislative powers can not be delegated, so they can not be bargained or bartered away. . . . One council can not by ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government. If this could not be done by an ordinance, of course it could not be done by a contract."
It is my opinion that the same reasoning expressed in Horkan v. City of Moultrie, supra, with respect to the weaker situation of a contract merely extending beyond the term of the initiating board would be even more applicable to preclude the Board of Education of Floyd County from binding a successor board with respect to its power to select a school superintendent to serve wholly within the term of such successor board as its executive officer and to effectuate its policies, especially in view of what would appear to be an obvious intendment of the constitutional amendment to place the school superintendent of Floyd County even more directly under the control of and more responsive to the county board of education than is elsewhere the case. This intent of the amendment would obviously be frustrated to considerable degree if one board could so bind its successor. For this reason, I believe that any such action on the part of the present board would be held to be ultra vires, and hence null

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and void even if the office were considered to be for a four-year term rather than at the pleasure of the board.
June 16, 1964
OPINION TO THE STONE MOUNTAIN MEMORIAL ASSOCIATION
You inquire as to whether or not an audit of the books of the Stone Mountain Memorial Association by the State Auditor will meet the requirements of the Trust Indenture securing the Stone Mountain Memorial Association Revenue Bonds, Series 1962.
That Trust Indenture, dated July 1, 1962, with The Citizens and Southern National Bank as Trustee, states in 716 of Article VII, in part:
"The Association further covenants that within ninety days after the end of each fiscal year it will cause an audit to be made of the books and accounts pertaining to the leased facilities, by an independent firm of certified public accountants of suitable experience and responsibility to be chosen by the Association with the approval of the Trustee."
It is my opinion that the language of the Trust Indenture quoted above clearly requires "an independent firm of certified public accountants of suitable experience and responsibility to be chosen by the Association with the approval of the Trustee," and does not authorize an audit by the State Auditor.
June 19, 1964
COUNTY OFFICE SUPPLIES
There are two questions posed by your letter, the first being whether the County Commissioners of Laurens County may buy the furniture for the offices of the Laurens County Board of Education; and the second concerning whether the school tax money may be used for the aforesaid purpose.
As a preliminary and basic observation, I would note that the disposition of the bond funds is controlled by the specific purpose or purposes for which the bonds were expressly voted and such funds cannot be diverted to any other purpose. Marks v. Richmond County, 165 Ga. 316, 324 (1927). Since you have not supplied me with information as to the bond purposes, it is not possible for me to determine whether such offices may be furnished by said funds.
It is my opinion that under the laws of this State, the county is responsible for furnishing the offices of the County Board of Education if the offices are located in the court house. In this connec-

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tion, your attention is directed to Georgia Laws 1901, p. 62 (Georgia Code Ann. 91-704), which provides as follows:
"91-704. Supplies for county offices.-It shall be the duty of the ordinary or board of county commissioners, or other county authority having the management of the revenues of the county, to furnish coal, wood, lights, furniture, stationery, records, and office supplies in general, for the different county offices of the county, at the expense of the county: Provided, that this section shall apply only to the offices of said officers in the courthouse in said county." (Emphasis added)
In Floyd County v. Graham, 24 Ga. App. 294 (1919), at page 295, the Court of Appeals of Georgia construed the statute as follows:
"[W] e construe this section to mean that a county officer having an office in the court-house is entitled to have all office supplies and equipment reasonably necessary to maintain his office in a modern up-to-date manner, corresponding with offices of similar character responsible for a like amount of work. . . . [I] t is our opinion that the legislature intended that the term 'office supplies in general' should include all necessary office equipment-such as telephones, typewriters, etc."
A possible point of dispute could be whether the Board of Education, either individually or collectively, are "county officers" as required by 91-704; and this question has been answered in the affirmative in Ops. Att'y Gen. 383 (1954-56). See also: Stanford v. Lynch, 147 Ga. 518 (1918) ; Haulihan v. Saussy, 206 Ga. 1 (1949).
The situation presented appears to fall squarely within the mandate of the above statute, and it is therefore my conclusion that it is the responsibility of the county to furnish the offices of the County Board of Education so long as they remain in the court house.
Although I can find no law prohibiting the expenditure of school tax funds for such purpose, I believe it unnecessary to examine this question in detail in light of the above conclusion.
June 22, 1964
OPINION TO THE STATE SCHOOL BUILDING AUTHORITY
You requested I furnish you my opinion concerning municipalities and counties requiring building permit fees of contractors engaged in the construction of buildings for the State School Building Authority on property of the Authority. Since all contractor costs ultimately become part of the construction costs to the Authority, you have previously instructed contractors not to pay such fees, and that if paid, the fees would not be reimbursed. You now wish to learn whether this position is sound.
The State School Building Authority was created by Georgia Laws 1951, p. 241 et seq. (Georgia Code Ann. 32-1401a et seq.),

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which made the Authority an instrumentality of the State (Georgia Code Ann. 32-1402a). Further, the General Assembly determined and declared the workings of the Authority to be essential government functions, and the State covenanted with bondholders of the Authority that the Authority would not be required to pay taxes or assessments upon any property acquired, leased or under its control, possession or supervision, or upon its activities and operation or maintenance of buildings erected or acquired, or any fees, rentals or other charges (Georgia Code Ann. 32-1421a). This covenant certainly indicates the General Assembly did not contemplate assessment of any fees, of whatever nature, directly or indirectly, upon the Authority.
It is generally recognized that the State is not bound by a statute unless expressly named therein, or unless the context of the statute clearly indicates an intention for the State to be included. See Georgia Code Ann. 102-109. It is also well settled that the powers of municipalities and counties are limited to those expressly granted to them by the Constitution or the General Assembly, or those which are conferred by necessary implication. Blackman Health Resort v. City of Atlanta, 151 Ga. 507 (6) (1921) .The power to require building permit fees is not set forth in the Constitution, cannot be merely assumed, so must of necessity stem from an expression of the General Assembly. This power could be from charter provisions, or perhaps though local acts. Since no particular county or municipality is under consideration, this opinion must be somewhat general.
Building permit fees are maintained upon either the theories of exercise of police power or as revenue measures. Though the language of the individual ordinances may vary, and may be couched in such terms as to leave the impression the incidence of enforcement is against the person actually engaged in the construction, it is nonetheless enforceable ultimately against the owner of the property. Whether exercised as a police power or a revenue measure, it seems quite obvious the State would never by implication-only by expressly unequivocal language-consent to the requiring of permits of itself. If the State chooses not to perform the actual labor with its own full-time employees, but instead engages the services of a contractor, should this serve to alter the situation?
I think the question is answered by the case of City of Atlanta v. State, 181 Ga. 346 (1935). In that case, the Board of Control of Eleemosynary Institutions was engaged in the repair of one of its buildings located on property of the State. The City of Atlanta demanded, and sought to enforce upon the Board through arrest of the foreman in charge of the repair, a fee (computed as a percentage of the cost of repair) and permit to make such repairs. The Court in headnote 3 held:
"Where repairs are being made upon a building owned by
the State, on State property, it is wholly a matter of State con-
cern, and a municipal building ordinance is ultra vires insofar
as it affects the State."

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The Court quoted approvingly from Mayor & Council of Atlanta v. Central R. R. & Banking Co., 53 Ga. 120 (1873):
"In delegating the power and authority to the defendant to lay out streets, etc., for the benefit of the city, the Stat~ cannot be presumed to have granted the power and authority to do so as against her own sovereign rights over her own property without first having obtained her consent."
Upon this authority, it is my opinion that building permit fees could not be legally required by municipalities or counties of contractors on buildings being constructed for the Authority on Authority property.
I am not unmindful of other authority which would seem to indicate a contrary result. City of LaGrange v. Whitley, 180 Ga. 805 (1935), is a case in which a municipality successfully imposed an occupational tax on a contractor whose business consisted of the paving of streets and sidewalks for governmental bodies. The Court in that case rejected the contractor's contention that he (through his contracts) occupied the status, position and immunity of the governments with whom he contracted. The Court cited as authority 61 C.J.S. 368, to the effect that the public character of a contracting party does not operate to relieve a person conducting such business of an occupational tax for which he would otherwise be liable. However, the LaGrange case has been distinguished from the broad application to all fees (regardless of their nature, whether occupational permits, etc.) by Newton v. City of Atlanta, 189 Ga. 441 (1939). In division three of the opinion, the Court stated:
"The general rule is that public property and the various instrumentalities of government are not subject to taxation. This immunity rests upon the most fundamental principles of government; being necessary in order that the functions of government be not unduly impeded, as well as for other reasons. The State's properties and instrumentalities are thus exempt from municipal taxation or regulation, in the absence of express legislative authority. Penick v. Foster, 129 Ga. 217; City Council of Augusta v. Dunbar, 50 Ga. 387 (2); . . . (citing several other cases) ."
The Court then proceeded to rule nothing to the contrary had been held in the LaGrange case. The Court thus ruled it was error for the lower court to have dismissed a petition attacking occupational taxes of the City of Atlanta which it was sought to impose upon dealers in fruit and produce in the State Farmers' Market.
It is my opinion that this sufficiently distinguished the LaGrange case, and that the requiring of building permit fees from the State or a State instrumentality is clearly beyond the power of a municipality.

496
June 23, 1964
FIREARMS
You stated in your recent letter you would be traveling through Georgia in the next few weeks and wished to know if it is permissible under Georgia law to have within your automobile a pistol, or, if this were prohibited, a shotgun.
Georgia has a code section which prohibits the carrying of concealed weapons, which reads in part:
"Carrying concealed weapons.-Any person having or carrying about his person, unless in an open manner and fully exposed to view, any ... pistol, ... shall be guilty of a misdemeanor." Georgia Code Ann. 26-5101.
Section 26-5103 makes it unlawful for any person to have or carry about his person, or to have in his manual possession outside of his own home or place of business any pistol or revolver without first taking out a license from the ordinary of the county in which the party resides. This license would not authorize the carrying of a concealed weapon.
As to whether having a pistol within the automobile is illegal cannot be answered definitely, but certain guide-lines might be considered. The case of Hayes v. State, 28 Ga. App. 67 (1922), held it was not a violation of the code section prohibiting possession of a pistol without a license for the owner of a pistol, while driving a buggy, to have the pistol under the seat of the buggy where it was not in contact with his hands or any portion of his person. This case has not been overruled, and it is felt it would support a defense against a charge of possessing a pistol without a license so long as the pistol were in the glove compartment, in the trunk, or under the seat of the automobile so as not to be readily accessible. There has been some speculation the pistol could be on the seat if out of the immediate reach, but this would be "pushing your luck."
There is no provision for recognition of licenses of other states in Georgia, and I do not think you would encounter any difficulties unless there were some reason for your automobile to be stopped, such as violation of traffic laws or involvement in an accident. If you chose to bring with you a shotgun, there is no law prohibiting the carrying of shotguns in an automobile; but they cannot be carried loaded, as this might be considered as a violation of the Game and Fish laws pertaining to hunting from automobiles.
June 24, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This is in response to your request for clarification with respect to traffic jurisdiction of the Georgia State Patrol on the Cusseta-

497
Columbus highway (U. S. 280-U. S. 27) lying within boundaries of land ceded to the U. S. Government (Fort Benning).
Article I, 8, Clauses 17 and 18 of the Constitution of the United States provide in essence that the United States may acquire land by purchase or cession from another State. The Attorney General of the United States in interpreting the above quoted provision of the Constitution stated that "the United States may gain exclusive jurisdiction over lands acquired within a State either by purchase with the consent of the State Legislature or by cession of jurisdiction by the State Legislature to the United States and acceptance of the cession by Congress. 13 Op,s. Att'y Gen. 460.
The Act of Congress of February 1, 1940, C. 18, 54 Stat. 19, codified as 255 of Title 40, U. S. C. A. provided that it was not necessary for Congress itself to accept exclusive jurisdiction over lands or interests therein which are acquired; the head or other authorized officer of any department or agency of the Government may accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody or control are situated, and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of each State.
Whether to grant a permit to extend state roads across military reservations or to erect bridges thereon, and terms and conditions of such permits, are questions for the Secretary of War and not for the courts. 43 USCA 6933; Golden Gate Bridge & Hwy. Dist. of Calif. v. United States, 125 F. 2d 872 (9th Cir. 1942).
By an Act of the General Assembly approved February 15, 1952 (Georgia Laws 1952, p. 264), the cession laws were amended to read as follows:
"15-302. Exclusive jurisdiction in and over any lands so acquired by the United States is hereby ceded to the United States for all purposes except service upon such lands of all civil and criminal process of the courts of this State; but the jurisdiction so ceded shall continue no longer than said United States shall own such lands. The State retains its civil and criminal jurisdiction over persons and citizens in said ceded territory, as over other persons and citizens in this State, except as to any ceded territory owned by the United States and used by the Department of Defense, but the State retains jurisdiction over the regulation of public utility services in any ceded territory. Nothing herein shall interfere with the jurisdiction of the United States over any matter or subjects set out in the Acts of Congress donating money for the erection of public buildings for the transaction of its business in this State, or with any laws, rules or regulations that Congress may adopt for the preservation and protection of its property and rights in said ceded territory, and the proper maintenance of good order therein."
Subsequent to the passage of the above Act and in accordance thereto, the Secretary of the Army filed with the Governor of Geor-

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gia official acceptance of jurisdiction of the lands in Georgia used for Army installations, Fort Benning included.
Going one step further, we become concerned over the highways built and maintained by the State. On January 23, 1941, and February 27, 1941, the United States granted a permit to the State of Georgia, signed by Robert P. Patterson, then Under-Secretary of War, granting them a license to enter upon the federal reservations and giving the State a right-of-way for the purpose of widening and realigning the highway, now called U. S. Highway 280; and gave the State a license to use material on the reservation for construction and maintenance of the highway. The right-of-way to old Highway 280 for its improvement and widening was in the State of Georgia and has not been divested, but has only been improved and changed.
Paragraph 6 of the permit of January 23, 1941 provides:
"That the United States reserves to itself right-of-way for all purposes across, over and/or under the right-of-way hereby granted, such rights, however, to be used in manner that will not create unnecessary interference with the use and enjoyment of the State of Georgia of said right-of-way for highway purposes." (Emphosis supplied)
The grant of rights-of-way for highway or other purposes traversing lands of the United States does not generally deprive the Federal Government of jurisdiction over the lands covered by such rights-of-way.
United States v. Unzeuta, 281 U. S. 138, 74 L. Ed. 761, 50 S. Ct. 284 (1930) held:
"The mere fact that the portion of the reservation in question is actually used as a railroad right of way is not controlling on the question of jurisdiction. Rights-of-way for various purposes, such as for railroads, ditches, pipe lines, telegraph and telephone lines, across Federal reservations, may be entirely compatible with exclusive jurisdiction ceded to the United States."
People v. Hillman, 246 N. Y. 467, 159 N.E. 400 (1927), held that the New York courts had no jurisdiction of an offense committed upon a highway within the general limits of the West Point military lands, although the acts of cession contained a "reservation of right of occupancy of the highways now existing or which may exist upon such lands," the court saying that such clause should not be construed as a reservation of political dominion.
Wayne County v. United States, 53 Ct. Cl. 417 (1918) aff'd. 252 U. S. 574 (1919) held that the property rights of a state in a public highway are in the nature of an easement held for the benefit of the public. Therefore, such rights are within most of the definitions of "public" rather than "private" property. Nevertheless, when taken by the federal government, they are regarded as private property for which compensation must be paid.

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Golden Gate Bridge and Highway Dist. v. United States, 125 F. 2d 872 (9th Cir. 1942), cert. den. 316 U. S. 700 (1942) wherein the Golden Gate Bridge and its approaches were constructed, maintained, - and operated by the Golden Gate Bridge and Highway District of California. One end of the bridge and its approaches are on the Presidio of California, a military reservation; the other end and approach are on the Fort Baker military reservation. The Secretary of the Army granted plaintiffs a permit to construct the ends of the bridge on the military reservations and to extend the roads approaching the bridge across those reservations subject to certain conditions. In substance, one of the conditions was that civilian employees of the Army and Navy on official business, government traffic, and all military and naval personnel and their dependents were to be able to use the roads and bridges free of any toll charges. The Golden Gate Bridge and Highway District accepted the permit subject to that condition. A dispute arose as to whether "government traffic," other than Army and Navy, was entitled to use the bridge without charge. In holding that all government traffic was exempt from the tolls, the court pointed out that the question of whether a permit should be granted in such a case and if so what conditions shall attach, "are questions to be decided by the Secretary of the Army, not the courts."
Your specific request is "what is the authority of the State Troopers to exercise any or no power of arrest in the cited area (Fort Benning reservation)." Based upon the above authority, it is my opinion, that without the consent of the Secretary of the Army the State Troopers do not have arresting powers on the CussetaColumbus highway that is within the Fort Benning reservation.
June 25, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I wish to acknowledge receipt of your letter in which you state that the State Merit System plans to activate the pre-employment physical examination program on July 1, 1964, and that several questions have arisen with respect to which you need clarification.
"1. Section 89-1002f, Georgia Code Annotated, states:
'The physical examination shall be completed before disbursement of salary to an affected employee: Provided, however, that a prescribed number of calendar days from date of appointment shall be allowed for the physical examination and the reporting of the results thereof to the appointing authority.'
"Does this mean that a new employee can be officially appointed and begin actual performance of his duties prior to the completion of the physical examination? If so, can his salary check be given to him on regular pay days prior to the

500
satisfactory completion of the physical examination during the period of days established by the Merit System, or must his pay checks be withheld until a report of the physical examination is received by the appropriate officials?"
My interpretation of this section is that a physical examination of an employee must be completed before disbursement of salary to an affected employee. However, the report on the physical examination may be filed with the appointing authority by the examining physician after the disbursement of salary within a prescribed number of calendar days as fixed by the State Personnel Board. This means that a new employee can be officially appointed and begin actual performance of his duties prior to the completion of the physical examination, but that the physical examination is to be completed before the disbursement of any salary. His salary check may not be given to him prior to the completion of the physical examination, and the number of days fixed by the Merit System, in my opinion, is only with reference to the report of the physical examination.
Pay checks of an employee examined prior to the disbursement of salary should not be withheld until the report of the physical examination is received. There is no penalty provided in the law in the event the report of physical examination, completed before the disbursement of salary, is not filed by the appointing authority within the prescribed number of days fixed by the Merit System.
"2. Can the Merit System certify to the correctness of our payroll in its customary post-audit if the payroll shows disbursements prior to the completion of the physical examination?"
The Merit System cannot certify to the correctness of your payroll in its customary post-audit if the payroll shows disbursements prior to the completion of the physical examination, as this would not be in compliance with the law.
"3. From time to time the Health Department has trainees who receive monthly stipend checks for as long as a full academic year before assuming regular duties. Are such traineeswhose length of service exceeds the 45 work day period established by the Merit System-subject to the requirement of a pre-employment physical examination?"
In cases of trainees of the Health Department whose length of service exceeds the forty-five day period established by the Merit System, I cite to you Rules and Regulations of the State Personnel Board governing the operation of the pre-employment physical examination program, paragraph I., which states:
"Pre-employment physical examinations are required of all State employees except department heads, present employees, students in the University System of Georgia in the employ of the State, and temporary employees. (A temporary employee, for the purpose of these Rules and Regulations, is defined as a person whose period of employment does not exceed

501
forty-five work days and who is not re-employed more than once for a similar period in any twelve consecutive months.)"
It is my construction of this rule that the trainees of the Health Department would not be exempt from the pre-employment physical examination required by law and the Rules and Regulations of the State Personnel Board.
June 25, 1964
LEGISLATURE
This is to acknowledge receipt of your recent letter in which you state that you are an unopposed Democratic candidate for the State Legislature from Chatham County, that in the past, Sewell & Associates, Inc., a corporation which renders engineering and architectural services, has done certain work for the Georgia Ports Authority, Georgia Department of Labor, Georgia Department of Commerce, Regents of the University System of Georgia and the Georgia Department of Defense. In addition, your letter states that you are a stockholder of this firm, and that you now hold the office of president of this corporation.
Your question is whether membership in the Legislature would prevent Sewell & Associates, Inc. from performing in the future engineering and architectural services for the above stated boards, authorities and agencies.
The statute which you quote in your letter is 89-916 of the Georgia Code Annotated which reads as follows:
"Members of boards and agencies prohibited from contracting with agencies of which they are members.-No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission, committee or other State agency, or any such authority, on which such person is a member."
Since, as a member of the Legislature, you will not be a member of any board, bureau, commission or State agency, this section is clearly not applicable.
Section 89-913 of the Georgia Code Annotated provides as follows:
"Officers and employees of State prohibited from buying from or selling to State property at pecuniary gain.-It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such official or employee. Nor shall any fulltime appointive State official or employee influence, or attempt

502
to influence, the execution of any contract, agreement or transaction entered into by the State of Georgia, or any department, agency, commission or authority thereof, for the purchase or sale of any real or personal property, goods or services, or a combination thereof, where such action would result in actual ascertainable pecuniary or other gain to such official or employee."
This section applies to "any full-time appointive State official or employee." As a member of the Legislature, you would neither be a full-time nor an appointive official, nor would you be a State employee. Therefore, I do not believe this statute would be applicable.
Section 26-5004 provides as follows:
"Interested persons acting as Government agents.-Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than 20 years."
It is a general rule that criminal statutes must be strictly construed. Wood v. State, 68 Ga. App. 43 (1942) ; Waldroup v. State, 198 Ga. 144 (1944). I assume that work performed by Sewell & Associates, Inc. for the above boards, authorities and agencies has been in the nature of engineering and architectural service and advice. The prohibition contained in the above statute not to sell "any goods, wares or merchandise, personal property or other chattels" could not be extended to cover services rendered.
For the above reasons, it is my opinion that your election to the State Legislature will not prevent Sewell & Associates, Inc. from performing future services in accordance with good business practices to the above mentioned boards, authorities and agencies.
June 26, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
In acknowledgment of your request for an opinion as to the effect of an Act adopted by the 1964 Session of the General Assembly

503
set out in Georgia Laws 1964, page 261, on the prior 1959 "Honesty Bill," I wish to submit the following.
I. Comparison of Act No. 736, 1964 Georgia Laws, p. 261, with prior similar acts.
Prior to the 1964 Regular Session of the General Assembly, the State of Georgia had adopted two laws which prescribe certain acts of persons connected with the State government. Those two laws are House Bill No. 111 of the 1956 Session of the General Assembly and House Bill No. 1 of the 1959 Session of the General Assembly, the latter of which is popularly known as the "Honesty in Government Law" and has been codified as Chapter 26-50 of the Georgia Code Annotated. Act No. 736 of the 1964 Session of the General Assembly is the natural child of the 1959 "Honesty in Government Law." The language of the statutes contained in these two acts is almost identical, significant differences appearing in the class of persons to which the two statutes are applicable. While the 1959 "Honesty in Government Law" prohibits and makes criminal certain acts of officers, employees or agents of the State of Georgia, or any agency thereof, Act No. 736 applies in the same manner to officers, employees or agents of any political subdivision or municipal corporation of the State, or any agency thereof. The acts prohibited by the 1959 "Honesty in Government Law" fall within the general categories of bribery, embezzlement and fraudulent practices in dealing with the State government or its various agencies. Under Act 736 similar prohibitions are placed upon officials and employees of political subdivisions in regard to their activities and dealings with local governing bodies.
Although both the 1959 "Honesty in Government Law" and Act 736 make a violation of the various statutes a felony, Act 736 reduces the penalty for stated crimes to imprisonment for not less than one nor more than five years from the more severe penalty of from one to twenty years provided for in the 1959 "Honesty in Government Law."
In addition, two sections of Act 736 have liberalized the stricter provisons found in their companion statutes in the 1959 "Honesty in Government Law." Section 2 of Act 736 which prohibits certain classes of officers and employees of political subdivisions from doing business with the political subdivision provides as follows:
"Interested Persons Acting as Government Agents. Whoever being an officer, agent or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of any political subdivision or municipal corporation of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of any political subdivision or municipal corporation of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia or by appropriate ordinance or resolution of the political subdivision or municipal corporation, and who is entitled to or receives compensation

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or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels to the political subdivisions, municipal or other public corporations, or other public organizations, of the State of Georgia, or any agency thereof in excess of $100.00 unless sold as a result of bona fide competitive bidding. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years. No act shall be considered a violation of any provision of this section unless the same is done with intent to defraud the political subdivision, municipal or other public corporations, or other public organizations, of the State of Georgia or any agency thereof." (Emphasis added)
This is a much more liberal statute than its companion, the 1959 "Honesty in Government Law" (codified as 26-5004 of the Georgia Code Annotated), which strictly prohibits in any manner State officers or employees from engaging in such transactions with the State government.
Section 8 of Act 736 makes it a crime when
"an officer, employee, or agent of a political subdivision, municipal or other public corporation, or other public organization of the State of Georgia or agency thereof, having received public money which he is not authorized to retain as salary, pay, or emolument wilfully fails to render his accounts for the same as provided by law, ..." (Emphasis added)
The insertion of the word "wilfully" would make this section more lenient than its counterpart in the 1959 "Honesty in Government Law."
II. Intent of Legislature.
Section 15 of Act 736 provides:
"Construction. Nothing in this Act, shall be deemed or construed to have repealed any other valid statute or ordinance and the crimes herein provided shall be in addition to other sanctions provided by law, both criminal and civil."
It is apparent from the above section that it was not the intent. of the Legislature in passing Act 736 to repeal, amend or affect in any manner any prior lawful statute. However, if two statutes passed by the Legislature are completely repugnant to each other, it is up to the courts to determine which statute should be followed.
III. Repeal by Implication.
In the case of Martin v. State, 75 Ga. App. 807 (1947), the Court. stated:
"Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. In the

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nature of things it would be so, not only on theory of intention but because contradictions cannot stand together. The intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance."
Another Court of Appeals case, Kaminsky v. State, 76 Ga. App. 503 (1948), held that although repeal by implication is possible, it is not favored. Before an act is repealed by implication, the conflict between it and the repealing act must be clear and irreconcilable.
Section 9 of Act No. 736 is in language identical to the statute contained in the 1959 "Honesty in Government Law" and codified as 26-5012 of the Georgia Code Annotated, with the exception that the subsequent act provides a lesser penalty for the prohibited acts. Section 9 read as follows:
"Custodians, Generally, Misusing Public Funds. Whoever, being an officer or other person charged by any law with the safe-keeping of the public moneys, loans, uses, or converts to his own use, or deposits in any bank or exchanges for other funds, except as specially allowed by law, any portion of the public moneys entrusted to him for safe-keeping, is guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years."
In the case of Gorman v. Hammond, 28 Ga. 85 (1859), the Court stated that
"it is a rule that when there are two statutes imposing a penalty for the same offense, and the penalty imposed by the one is not the same as that imposed by the other, the later statute repeals the earlier-the intention to inflict two punishments for the same offense being a thing not to be imputed to the legislature. . . ."
Unless these two statutes can be reconciled, it is questionable whether the saving clause included in Act No. 736 would be effective in retaining the prior statute. The Courts of Georgia have repeatedly held that repeal by implication is not to be favored. Conflicts of statutes must be "clear and irreconcilable." In my opinion these two statutes are not in conflict, since I believe that those two statutes apply to two different classes of persons.
Section 102-102, subsection 9, of the Georgia Code Annotated provides inter alia that:
"In all interpretations, the court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy."
In the case of McDougald v. Dougherty, 14 Ga. 674 (1852), the Court held that:

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"A statute must be construed with reference to the whole system of which it forms a part."
Construing 9 of Act No. 736 in its context, it is my opinion that this statute, although identical in language with the prior statute, is intended to apply to officers and custodians on the local level of government and that the two acts therefor are not in irreconcilable conflict.
IV. Conclusion.
It is my opinion that the Legislature in enacting Act No. 736 has made certain provisions of the 1959 "Honesty in Government Law" applicable to conduct of officers and employees of political subdivisions in the State of Georgia, and that in so doing, has not repealed, amended or in any manner lessened the effectiveness of prior "Honesty in Government" statutes which dealt with State officials and employees.
June 26, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This letter refers both to a letter of the Division for Children and Youth of your Department (sometimes referred to hereinafter as the "Division") dated June 12, 1964, and to your letter dated June 25, 1964, requesting that my response to the Division's letter be rendered to you as an official opinion.
The letter from the Division refers to the fact the Fulton County Department of Family and Children Services (sometimes referred to hereinafter as "County Department"), which prior to July 1, 1963, had been licensed by the Division as a child-placing agency, had its license cancelled on such date as its own request. The letter notes that problems have arisen concerning the procedure to be followed in transferring custody of children who were in the care and control of the County Department at the time of the voluntary license cancellation to the Division, and requests opinions as to the following questions:
1. In the case of permanent custody of children secured by voluntary surrender of the natural parent or parents, can Fulton County legally transfer permanent custody of the child to the State Department by executing a legal surrender and without further involvement of the natural parents? The purpose would be to give the State custody so that it could release the child to the adoptive parents.
2. In the case of permanent custody of children secured through court order, can Fulton County legally transfer permanent custody of the child to the State Department without going back to the court for a change in court order? Again

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the purpose would be to enable the State to execute a surrender to the adoptive parents.
3. Since the Fulton County Department was licensed to make adoption placement when custody was awarded that agency, could it now legally release the child to the adoptive parents even though it is no longer licensed to make adoptive placement? Or would it be a sounder plan legally to surrender such children to the State Department which would sign the legal surrender to the adoptive parents.
While the letter contains no information as to the crucial matter of the language used in the voluntary surrender agreements referred to in Question One and in the court orders referred to in Question Two, I have received the following information in that regard: One, the surrender or release agreements involved in Question One constitute a complete and permanent relinquishment of any and all parental rights by the natural parent or parents and also authorizes the County Department to place the children for adoption; Two, the court orderS involved in Question Two, while authorizing the County Department to place the children for adoption (and terminating all parental rights of the natural parent or parents) does not contain any language authorizing the County Department to transfer custody of the children to any other child-placing agency for adoption placement by the transferee agency.
My opinion, based on the above understanding of the factual situation and also based upon the premise that you desire (in an area where the relatively new law has not yet been subjected to judicial interpretation to remove uncertainties) to follow those procedures which would be least likely to result in litigation rather than those which might be advisable if you should desire a court test of the "possible" legal authority of the Division in this area, along with the reasons for such opinions, are as follows:
OPINIONS
1. It is my opinion that where the County Department has secured permanent custody of children by voluntary surrender or release of the natural parents, the custody of such children may be transferred by the County Department to the Division by a surrender agreement between these public agencies and without further involvement of the natural parents.
2. It is my opinion that where the County Department has secured permanent custody of children by court order, the prudent (and probably necessary) procedure to transfer custody from the County Department to the Division would be to have the court order modified to effect the transfer.
3. In view of the legal uncertainty which would be involved with respect to the County Department's continuing to place for adoption, after its child-placing license had been cancelled, those children whose custody it had obtained prior to such cancellation, I am of the opinion that the more prudent policy would

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be to have the County Department transfer custody to the Division and have the children placed for adoption by the Division.
DISCUSSION
1. Transfer of custody of children obtained by voluntary surrender of natural parent or parents.
The common law of England, the various United States, and virtually all statutory enactments on the matter in all jurisdictions, recognize the father as the legitimate natural guardian of his child. See e.g., Lamar v. Harris,, 117 Ga. 993, 997 (1903); Georgia Code Ann. 49-102, 74-108; 67 C.J.S. Parent and Child 11 (1950). Moreover, the duties and obligation of the father toward his child (e.g., maintenance, support and education) have their roots deep in the common law and cannot freely and lightly be disposed of or transferred to another. See e.g., Georgia Code Ann. 74-105. A child cannot be traded, bought and sold as a piece of property, 39 AM. JUR. Parent and Child 28 (1942), and in many jurisdictions a contract whereunder a father attempts to voluntarily relinquish his natural custody and control (along with the correlative duties and obligations) over his child is null and void as contrary to public policy. 67 C.J.S. Parent and Child 11 (d) (1) (1950). On the other hand, some states do permit the natural parent or parents to relinquish parental custody, rights and duties to another by contract, at least where no obvious detriment to the child is present. See 67 C.J.S. Parent and Child 11 (d) (1) (1950). Georgia falls within the group of states allowing such contracts by virtue of a statute expressly providing that parental power may be lost by "voluntary contract, releasing the right to a third person." See Georgia Code Ann. 74-108 (1).
It cannot be too strongly emphasized, however, that inasmuch as such contracts are contrary to the natural order of the parent-child relationship, they will be strictly construed against the surrender of parental rights and, to be sustained, the terms of the contract must be clear and certain.
See, e.g., Rawdin v. Conner, 210 Ga. 508, 510-11 (1954). As stated in Davis v. Davis, 212 Ga. 217, 219 (1956) :
"This court has held many times that a contract by which it is alleged that a father has relinquished his parental right to the custody and control of his minor child to a third person must be established by strong and clear evidence, and the terms of the contract must be clear, definite, and unambiguous [citations omitted]. It has also been held that the contract should show the period of time during which control is relinquished, what stipulations were made with reference to rearing and educating the child, and other details of the contract."
And, in Lamar v. Harris, 117 Ga. 993 (1903), the court concluded that a contract transferring custody and control of a child to a named individual and his wife did not authorize the appointed individual to further alienate the child and natural parent by appointing a testamentary guardian for the child in his will. While not expressly stated,

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the rationale of the court in that case seems to be that the relinquishment of custody by the natural parent to one individual, presumably based upon trust and confidence in that particular individual, does not constitute an "implied" consent to have the child's custody further transferred to any other individual (who may or may not have the trust and confidence of the natural parent).
In light of the above authorities, it would seem obvious that the primary consideration in determining whether or not the Fulton County Department of Family and Children Services can legally transfer to the State Department of Family and Children Services, Division for Children and Youth, custody and control of those children which it has obtained through voluntary surrender or release of the natural parents, without any additional consent of such natural parents, must be the terms of the surrender or release agreement originally signed by the natural parents to transfer their custody to the County Department. It is my opinion that where the natural parents have permanently surrendered all of their parental rights and have agreed to placement of the child for adoption under the surrender or release agreement, the courts would probably hold such additional consent for the County Department to transfer custody and control over the child or children involved to the Division to be unnecessary. Although I am cognizant of the fact that this opinion, in view of the absence of any located decisions on the exact point involved and also in view of the strict construction of release agreements against loss of parental rights by the natural parents, cannot escape being classified as somewhat speculative, it is my belief that such is the probable result where the second transfer of custody is between the particular governmental bodies here involved, because of the provision of Georgia Code Ann. 74-403 (2) which expressly declares that where the natural parents have surrendered all of their parental rights to a licensed child-placing agency or the State Department of Family and Children Services, their consent to adopHon is not required. It would seem logical to suppose that this particular sort of release or surrender of child custody, which by statute (as well as by the terms of the agreement itself) is broad enough to support the permanent vesting of all parental rights in any third party (the third party being generally unknown to the natural parent) would be likely to be held by the courts to be broad enough to authorize a change in temporary custody pending such adoption without the necessity of further approval of the natural parents.
2. Transfer of custody of children obtained by court order.
Although Georgia Code Ann. 24-2427 authorizes the juvenile court to terminate parental rights and transfer permanent care, control and custody of such child to a proper agency or institution, the child remains within the general supervision and control of the court under Georgia Code Ann. 24-2422 which provides in part:
"Any final order of judgment by the court ... shall be subject to such modification from time to time as the court may consider to be for the welfare of such child. No commitment of any child to any institution or other custodial agency shall

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deprive the court of the jurisdiction to change the form of the commitment or transfer the custody of said child to some other institution or agency on such condition as the court may see fit to impose, the duty being constant upon the court to give to all children subject to its jurisdiction such oversight and control in the premises as will be conducive to the welfare of said child and the best interests of the State."
It would, therefore, appear that where custody of a child is obtained by a public (or private) child-placing agency by virtue of a court order the situation is different from where custody is obtained by voluntary surrender of the natural parents.
In the former situation, it would appear that the role of the public agency is that of a legal guardian and subject to the continuing oversight of the court. This being so, I am of the opinion that those children whose custody the Fulton County Department has acquired by court order should not be released to the Division for Children and Youth of the State Department without formal modification of the court order. The general rule which I believe requires this procedure is stated in 39 C.J.S. Guardian and Ward 56 (d) (1944):
"The guardian of an infant may not assign or transfer the custody of his ward to another, except temporarily or under due permission of the proper authorities, and his contract purporting to do so is invalid as contrary to public policy."
In addition, this conclusion would seem to be required by Fortson v. Fortson, 195 Ga. 750 (1943), where subsequent to a divorce decree awarding custody of minor children to the mother, an agreement was entered into between the mother and father which transferred custody to the father. In holding such subsequent agreement to be of no effect, the co11rt stated at pages 757-58:
"Nor can we apply the general rule that a parent having the lawful custody and control of his or her minor child may by contract release such parental authority to a third party [citations omitted]. Even such ordinary right of contract is not unlimited, but is subject to the welfare of the child in case of contest on that issue [citations omitted]. But in no event would the right apply in the instant case, where the court on 'divorce granted' had assumed actual jurisdiction of the question of custody. In such case, the duty of the State as parens patriae, and the jurisdiction of the court, are continuing, and not limited to the date of the divorce. The children are thus wards of the court, and the parent to whom custody is granted serves as a kind of receiver or trustee. The children are virtually if not actually in custodia legis, and pending this status even the limited right of private contract regarding their custody is gone."
While it is recognized that argument could be made that the foregoing authorities can be distinguished on the ground that they ought not to be applied to a transfer of custody from one public agency to another, it is obvious that even the absence of "reasonable" cer-

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tainty that a transfer of custody of such children without court order would be valid dictates the securing of such court order as a matter of prudence. It is my opinion, of course, that under the cited statutes and other authorities modification of the court order vesting custody in the Fulton County Department is not merely prudent but is also necessary.
3. Release of children to adoptive parents by Fulton County Department subsequent to can.cellation of child-placing license.
Georgia Code Ann. 99-214 provides that all child welfare agencies (which includes child-placing agencies) shall be licensed by the Division in order to provide services for children. While subsection (p) grants a general exemption from the licensing provisions for agencies of the State or any of its counties or municipalities, subsection (r) expressly prohibits any agency, institution or official, public or private from accepting a child under seventeen for adoption or placing such child in a home other than the home of the child's relative, "without having been licensed by the division." In view of the use of the past tense in the quoted provision and general exemption of a county agency from the licensing provisions of the Children and Youth Act it might well be that the Fulton County Department may legally release children now in its custody to adoptive parents even though it is no longer licensed to do so. [It still "has been" licensed to place children]. On the other hand, in view of what appears to be ambiguity in the various subsections of Georgia Code Ann. 99-214, I am of the opinion that it would be prudent to have the Fulton County Department legally surrender children in its custody and control pending placement with adoptive parents, to the State Department and have the State Department, through its Division for Children and Youth, execute the surrender of custody to the adoptive parents.
June 26, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion concerning the taxability of long-term notes secured by real estate where the note is transferred or discounted with an exempt national bank.
The provisions of the law providing for the taxation of long-term notes secured by real estate are found in Georgia Code Ann. 92-161 through 92-184. The case which brings this question to your attention involves a situation in which a home improvement corporation does work for a citizen and takes in payment of his home improvement contract a note promising to make payments over a period of time, which would qualify the same as a long-term note. The note is made payable to the contractor involved and not to a national bank. However, it is the practice of the contractor to discount the note by selling the same to a national bank. We have previously ruled that national banks may not be taxed under the provision of this law, and thus the question of the taxability of the instrument in question arises.

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Georgia Code Ann. 92-164 provides that every holder of longterm notes secured by real estate shall, within 90 days from the date of the instrument executed to secure the same, record the instrument and pay the tax. This obligation is not extinguished by the holder when he transfers the note to a national bank. Section 92-165 provides, with respect to the General Assembly's intention:
"It is the intention of the General Assembly of Georgia that this intangible tax herein levied imposed by section 92-164 shall be paid to the tax collector or tax commissioner prior to and as a prerequisite to the filing for record of the real estate instrument securing said note with the clerk of the court
"
and Georgia Code Annotated 92-171 provides that the failure to pay the tax levied by that law shall constitute a bar to the collection of the indebtedness secured by any instrument required by law to be recorded by suit, foreclosure, the exercise of any power of sale, or otherwise, whether such instrument be held by an orignal party thereto or a transferee. It is therefore apparent and clear that the General Assembly intended to tax every such note, and it is my opinion, based upon an examination of these statutes, that the transfer by assignment or otherwise to the national bank does not relieve the original holder of his tax obligation and does not change the tax status of the instrument.
The national bank as transferee is, of course, not liable to pay the tax. However, their transferor is liable to pay the tax, and the Tax Commissioner may properly refuse to record the instrument until the taxes have been paid.
June 29, 1964
OPINION TO THE BOARD OF PARDONS AND PAROLES
This will acknowledge receipt of your letter requesting my opinion on the following questions:
I. What constitutes the minimum sentence that a misdemeanant may be given under Senate Bill213 (Ga. L. 1964, p. 485) and still be placed under State supervision?
II. May a court impose a sentence containing an odd number of days in sentences to be served under county jurisdiction?
III. Would a sentence of six (6) months and one (1) day be a State or a county sentence?
IV. Would a person sentenced to "twelve (12) months, serve one (1) month, balance probated," be confined under State or county jurisdiction?; A sentence of "twelve (12) months, serve seven (7) months, balance probated"?

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V. What are the effective dates of Senate Bills 212, 213, 214, and 215?
QUESTION I. In response to your first question, I call your attention to subsection (b) of 1 of Senate Bill 213 (Georgia Laws 1964, p. 485) which provides that misdemeanants may be placed under the jurisdiction of the State Board of Corrections if given a sentence which shall be "for a determinate term of months which shall be more than six months but shall not exceed a total term of twelve :months." (Emphasis added)
The language of the statute clearly indicates that a misdemeanor sentence under subsection (b) is to be given in terms of months; and since the statute clearly states that the sentence shall be for "more than six months," I can only conclude that the minimum sentence allowable under subsection (b) of Senate Bill 213 is seven (7) months.
QUESTION II. To determine whether a county sentence may be given in days or a combination of months and days, we must examine subsection (a) of 1 of Senate Bill 213, the pertinent portion of which states that a prisoner may serve his sentence under county jurisdiction on sentences "for a total term not to exceed 12 months." There is no specification in this subsection that said sentence shall be expressed only in terms of "months" and in the absence of such direction, it is my opinion that the court may impose a sentence of a certain number of days or a term of months plus an odd number of days, i.e., 30 days ; 4 months, 14 days.
QUESTION III. In light of the opinions given in relation to the first two questions, and in the absence of controlling Georgia case law, it is my opinion that a sentence of "6 months and 1 day" should be construed as a county sentence under subsection (a). This is in harmony with my advice that minimum penalty under subsection (b) would be a term of seven (7) months.
If the trial court imposed a sentence under subsection (b) and attempted to include an odd number of days along with the months, it is my opinion that such sentence would be improper, but I am unable to advise as to the court's probable disposition of such a sentence as it would be a case of first impression in this state. The alternatives would seem to be to either treat the days as surplusage and confine the prisoner for the term of months specified; or in the alternative, to treat it as one imposed under subsection (a) where such sentences are permissible and remand the prisoner to the county authorities. As stated above, I can advise that the sentences in question are improper, but can give no advice as to the resolution of such sentences since it appears that the court may easily choose any of a number of alternative solutions.
QUESTION IV. This question concerns the effect of a partial probation upon a given sentence. Under the examples given in your letter, the intent of the legislature in enacting these laws would be circumvented, as one of the evils sought to be remedied was the placing of individuals in our prisons who are not of the same caliber as felons or misdemeanants who warrant maximum periods of confinement. A

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second and equally important purpose of these laws was to prevent our prison system from being crowded by minor offenders, thereby prohibiting effective rehabilitative treatment for either the misdemeanors or the felons.
Therefore, to accomplish the desired purpose, the General Assembly phrased both subsections (a) and (b) in terms of "confinement" rather than "sentence." Webster's Dictionary defines confinement as, "to shut up" or "to keep within doors." Giving this word its normal meaning as is required by Georgia law, it is my opinion that a misdemeanant must be sentenced to a term of seven (7) months in actual imprisonment before a sentence could be construed as placing such individual under state jurisdiction. This would preclude state jurisdiction where a misdemeanant is given a sentence of "twelve (12) months, serve one (1) month, balance probated." However, a sentence of "twelve (12) months, serve seven (7) months, balance probated," would be a state sentence as it fulfills the minimum requirement of seven months in "confinement."
QUESTION V. Senate Bill 212 provides in six (6) that "This Act shall be effective as to crimes committed after July 1, 1964." Therefore, the act becomes effective at 12:01 A. M. July 2, 1964 and controls as to "crimes committed" after that time.
Senate Bill 213 provides in three (3) that "The provisions of this Act shall become effective July 1, 1964, and shall be applicable .to crimes committed on or after said date." Therefore, this Act becomes effective at 12:01 A. M. July 1, 1964, and controls as to crimes committed after that time.
Senate Bill 214 applies to "crimes committed" after June 30, 1964, thereby making the effective time 12:01 A. M. July 1, 1964.
Senate Bill 215 likewise applies to "crimes committed after June 30, 1964" and is effective as of 12 :01 A. M. July 1, 1964.
June 29, 1964
OPINION TO THE BOARD OF PROBATION
This will acknowledge receipt of your letter in which you request my opinion concerning the following questions:
"1. Does the authority of the sentencing Court to require service of a suspended sentence for abandonment expire at the end of the calendar period equal to the sentence, or does it extend to the 21st birthday of the youngest child of the defendant?
"2. Does the authority of the sentencing Court to require service of a suspended sentence for bastardy expire at the end of the ealendar period equal to the sentence, or does it extend to the 14th birthday of the child concerned?

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"3. If such sentences do expire at the end of the calendar periods equal to the sentences, by what means can the sentencing Courts enforce their orders for the support of the children concerned following expiration of the sentences?
"4. If such sentences do not expire at the end of the calendar periods equal to the sentences, are there any limitations upon the authority of the sentencing Courts to require service of the full terms of the suspended sentences, i.e., require service of the full twelve (12) months one week before the child reaches its twenty-first (21st) birthday?
"5. Are abandonment and bastardy cases regarded as criminal proceedings within the definitions of Sections 13 and 14?
"6. Are abandonment and bastardy cases regarded as probated cases within the definition of 13? If not, what is their classification?
"7. On whom does the responsibility for collection of support payments ordered in abandonment and bastardy cases fall?
"8. What is the status of Georgia abandonment and bastardy cases under the Interstate Compact for the Travel and Transfer of Probationers in States such as North Carolina, where probated sentences that are indeterminate or are longer than five years are prohibited by law? Does the State of Georgia have any recourse under the Compact when such States refuse to accept abandonment and bastardy cases on transfer?"
QUESTIONS 1 and 2 -- The first two questions propounded by your inquiry are consolidated since the provisions regarding abandonment and bastardy cases are similar, except that in the former the court may retain jurisdiction over the offender until the child reaches the age of twenty-one years, whereas in the latter, the age limitation is fourteen.
The controlling law is found in Georgia Laws 1960, p. 1148 (Georgia Code Ann. 27-2709) which amends 8 of the 1956 "Statewide Probation Act" (Georgia Laws 1956, pp. 27, 31). The original section as passed in 1956 provided that in criminal cases, except those punishable by death or life imprisonment, the court may impose sentence, but place the defendant on probation under the supervision of a circuit probation officer for a period not to exceed the maximum term which could be imposed for the crime. To this section, the 1960 Session of the General Assembly added a provision, the pertinent portions of which are as follows:
"Except that in a ... conviction of ... abandonment, the trial court may suspend the service of the sentence imposed ... upon such terms and conditions as it may prescribe for the support by the defendant of the child or children abandoned respectively, and service of such sentence when so suspended shall not begin unless and until ordered by the court having

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jurisdiction thereof, after a hearing as in cases of revocation of probated sentences ... ; [same provisions as to bastardy cases]. Service of any sentence so susp,ended in abandonment cases may be ordered by the Court having jurisdiction thereof at any time1 before such child or children, respectively, reach. the age of twenty-one years, and in bastardy cases at any time before such child or children, respectivety, reach the age of fourteen years, after a hearing as hereinbefore provided and a finding by such court that the defendant has failed or refused to comply with the terms and conditions upon which service of such sentence was suspended ...." (Emphasis added)
The foregoing provisions make it abundantly clear that the Legislature intended the court to retain jurisdiction of the offender until the specified age of the child or children if the court so ordered, and this mandate must be given full effect unless the Legislature intended a procedure similar to probation which expires upon the expiration of the sentence imposed, whether or not any of the time is served in actual confinement. The Supreme Court of Georgia resolved this question in Pop,ham v. Spears, 204 Ga. 759 (1949) by holding that the 1941 Act (almost indentical to the 1960 Act) gave the court power to retain jurisdiction over the offender until the designated age of the child, and that said sentence did not expire at the expiration of the twelve-month sentence actually imposed; otherwise, the Court held, it would be "a typical probation sentence."
Therefore, it is my opinion that under the law of this State, 8. suspended sentence in abandonment and bastardy cases is permissible and the court may retain jurisdiction of the offender until the offended child has reached the age designated by the statute.
QUESTION 3 -- It is unnecessary to discuss this question, in view of my opinion given in response to questions 1 and 2.
QUESTION 4 -- Under the present law, the only limitations upon the ability of the trial judge to require service of the full term is the statutory age limitation and the provisions of the sentence itself. In other words, the court may retain jurisdiction until the children have reached the ages designated in the statute or for any shorter period which the judge may specify in the sentence.
As previously explained, Georgia Code Ann. 27-2709 provides that in abandonment and bastardy cases the court may suspend the service of the sentence upon such terms as it may prescribe for the support of the children, and the "service of such sentence when so suspended shall not begin unless and until ordered by the court."
The above Code section was evidently meticulously worded to supplant the common law rule prohibiting suspended sentences and to abrogate the court decisions under that doctrine voiding suspended sentences. See: O'Dwyer v. Kelley, 133 Ga. 824 (1909); Daniel v. Persons, 137 Ga. 826 (1912); Short v. Dowling, 138 Ga. 834 (1912); Scott v. Griffin, 170 Ga. 368 (1929) ; Jackson v. Lowry, 171 Ga. 349 (1930) ; Scott v. McClelland, 162 Ga. 443 (1926); Avery v. State, 22 Ga. App. 746 (1918).

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Upon a careful reading of the statute, it is my considered opinion that a judge may require service of the entire sentence even though the service of such sentence would run pass the fourteenth (14th) or twenty-first (21st) birthday of the child. My conclusion is based on the fact that the age of the child designates only the length of jurisdiction to "revoke," rather than jurisdiction per se. Assuming for the moment a case where there is no suspension involved, I do not believe it would be argued that a man who originally abandoned his child when it was twenty (20) years and six (6) months old, could be sentenced to only six (6) months in prison when the law clearly specifies twelve (12) months. Therefore, there is no valid reason why such rule should not apply in suspension cases.
QUESTION 5 --Georgia Code Ann. 27-2715 provides that no probation officer shall be directed to collect any funds except those directed to be paid as the result of a "criminal proceeding" and those arising under the Reciprocal Support Act. In this section, there is no proviso excluding abandonment and bastardy cases and, since both are declared to be misdemeanors under Georgia law, it is my opinion that funds directed to be paid as the result of such cases would be the result of "criminal proceedings" as defined in this section, and the Circuit Probation Officers may be ordered to collect same.
QUESTION 6 -~ This question has been answered by implication in response to questions 1, 2, and 4, but I welcome the opportunity to clarify my ruling in relation to Georgia Code Ann. 27-2714 which provides that in all criminal cases in which sentence is imposed but the execution of which is suspended, the suspension shall have the effect of placing the defendant on probation. The statute itself provides the answer in a proviso specifically excluding abandonment and bastardy cases from the effects of this provision.
In order to relieve any concern over court orders which require that the probation officer enforce the court's order of support, I refer you to Clarke v. Carlan, 196 Ga. 130 (1943), in which the court suspended a conviction of abandonment "upon the condition that the defendant pay $15 each week through the Adult Probation office for the support of his minor children.'' In answer to the contention that this was in effect a probated sentence, the court held at 135:
"[T] he fact that the defendant 'was referred to the probation officer' cannot be taken as showing a different sentence from that imposed in the Potts case (suspension). Moreover, the fact that the defendant was referred to the probation officer, however this may have been done, did not convert the sentence into a probation sentence any more than was done in the Potts case by the requirement, common to both cases, that defendant pay a stated sum weekly 'through the adult probation office.' "
In conclusion, I reiterate that there is a decided difference in suspended and probated sentences, and although the distinction has been obliterated by statute and common law as to most crimes, it is specifically preserved in abandonment and bastardy cases. Therefore, it is my opinion that abandonment and bastardy cases provide for "suspended" rather than "probated" sentences.

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QUESTION 7 -- The responsibility for the collection of support payments ordered in abandonment and bastardy cases is a matter of judicial discretion. It may be imposed on any party allowed by law but in reference to your particular realm of interest, it seems clear that under Georgia Code Ann. 27-2715 and the answer given to question 5 above, the probation officers may be directed to collect this money since it is "funds" directed to be paid as a result of a "criminal proceeding."
QUESTION 8 --I have previously determined that sentences may be "suspended" effectively in abandonment and bastardy cases and that they are not de facto "probated" sentences even though money is directed to be paid through the circuit probation officer. Clarke v. Carlan, sup,ra.
It is common knowledge that suspended sentences are not supervised terms, and unless one of the terms of suspension is remaining within the State, the individual is free to travel as he pleases, without restraint, so long as he complies with the conditions of the suspension.
Therefore, it is my opinion that such persons could leave the State freely, unless ordered not to do so, and would not be controlled by the Interstate Compact for the Travel and Transfer of Probationers.
June 29, 1964
OPINION TO THE DEPARTMENT OF STATE PARKS
You inquire as to the necessity of securing approval by the Governor in the granting of concessions of various types in the several state parks. As I understand the situation, it has been the practice of the Department of State Parks to prepare the contracts for execution by the Director, but also for approval by the Governor. This procedure has resulted in a substantial administrative burden upon the Governor and his staff, as well as upon your staff in the additional processing required. With the volume of such concession agreements constantly increasing, the attendant administrative burden also will increase.
The routine nature of such agreements is such that they normally would not be of direct concern to the Governor, but would be handled by the director of a department; and, unless there is a specific provision of the law requiring the Governor to approve concession agreements for the Department of State Parks, it would appear that the administrative burden could be eliminated by simply allowing the contracts to be executed by the Director.
We have reviewed the law on this subject, and we have found nothing which would specifically require the Governor to approve in each individual case concession agreements of a routine nature.
Georgia Code Ann. 43-124, which sets forth the powers and duties of your Department, provides in subsection (g) that the Department in its discretion may enter into concession agreements.

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Nothing in that subsection would appear to require approval by the Governor in his capacity of Commissioner of Conservation, while other subsections of 43-124 expressly require approval of the Commissioner with respect to other actions authorized thereunder.
Accordingly, we feel that your procedure may be altered so that routine concessions for drink stands, pony riding operations, and the like, would be made between the Department by its Director and the concessionaire without involving the Governor.
Nothing herein should be construed as altering any procedures with respect to the leasing of real estate, as opposed to granting temporary concessions.
June 30, 1964
MUNICIPAL CHARTERS
This will acknowledge receipt of your letter requesting my opinion on whether the charter of the City of Mountville granted in 1897 is still active and in effect in view of the fact that the City has not operated under said charter since 1919.
I refer you to Georgia Laws 1947, p. 1545 (Georgia Code Ann. 69-105) which reads as follows:
"All incorporated cities and towns in the State of Georgia now existing and any that may be incorporated hereafter are hereby authorized to surrender their corporate charters, when said incorporated city or town has not functioned under the corporate charter for a period of ten years, by petitioning the superior court of the county in which the incorporated city lies, said petition being made by a majority of the registered voters of the non-functioning city or town, whereupon the judge of the superior court of said county may receive the surrendered corporate charter and by order of the court declare said incorporated town or city to be dissolved .... "
The above Code section provides dissolution procedures in situations similar to those presented by your letter and would seem to be the exclusive method of dissolution.
It is well settled in Georgia that the charter granted municipal corporations does not expire after a certain number of years as does a private corporate charter. Wall v. Mayor of Milledgeville, 197 Ga. 165 (1943).
The general rule is that, "a municipal corporation . . . does not ipso facto become dissolved or unincorporated or lose its existence by misuser or nonuser of its corporate powers, functions and franchises." 62 C.J.S. Municipal Corporations 103 (1949). This rule is followed in Georgia. Sell v. Turner, 138 Ga. 106 (1912).
Since my research discloses no other dissolution procedure for non-functioning municipalities, I am of the opinion that the aforemen-

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ti.oned statutory procedure must be followed in order to dissolve a town or municipality. Your letter indicates that such a procedure has not been followed and I would therefore advise that the corporate charter is still in effect even though the municipality has not functioned since 1919.
Under the existing Constitution of this State (Art. XIII, Sec. II, Par. VI; Georgia Code Ann. 2-8006) and 4 of the Act creating Mountville (Georgia Laws 1897, pp. 274, 275), the officers of the municipality would "hold offices ... until their successors are elected and qualified .... " See also: Step,henson v. Powell, 169 Ga. 406, 408 (1929) ; Pearson v. Lee, 173 Ga. 496 (1931). Therefore, I am of the opinion that you, as the last duly elected councilman, probably still technically hold the position of councilman.
June 30, 1964
SHERIFFS
This will acknowledge receipt of your letter requesting my opinion on whether you, as Sheriff, would be responsible for damage or loss of property under your control by virtue of a valid judicial execution.
The Georgia Supreme Court in the case of Wesberry v. Hand, 19 Ga. App. 529 (1917), held at 530:
"A sheriff, with regard to the care of property in his possession under judicial process, is a bailee for hire, and as such is required to use reasonable care and diligence in the preservation of the property .... The sheriff who has property in his custody is liable for the loss thereof or injury thereto resulting from his failure to use due care and diligence to preserve the same."
See also: Gilmore v. Moore, 30 Ga. 628 (1960); Johns v. Robinson, 119 Ga. 59 (1903).
'l'he reason for this rule is found in Gilmore v. Moore, supra, in which the Supreme Court held, at 629, that:
"Either the plaintiff or the sheriff must sustain the loss. The sheriff voluntarily assumes the responsibilities of his office .... The plaintiff has no option. He is compelled to entrust to the sheriff the collection of his debt."
Therefore, I can advise you that, as Sheriff, you are liable for the injury or loss to property in your care if you do not exercise due caution in protecting it. However, whether or not you exercise due care in a given situation would depend upon the facts of the case. It is a jury question which is incapable of a precise answer here, as each case depends upon its individual facts.

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July 3, 1964
OPINION TO THE STATE HIGHWAY DEPARTMENT
This will acknowledge and reply to you letter wherein you ask the following question:
"In your official opinion, is the State Highway Department of Georgia liable for damages to the remaining property from which right of way was acquired when the damages or diminution in value is a result of change of access or a reduction of access to any particular highway?"
You state in your letter that:
"There are a number of instances where right of way is acquired for limited access highways and the taking results in the remaining property being reduced in value due to a change in use. One of the best examples of this is where a motel fronts on or has good access to a heavily travelled highway and limited access right of way is acquired which causes the motel to have such remote access to the traffic that it is virtually put out of business."
Article I, Section III, Paragraph I of the Constitution of the State of Georgia ( 2-301, Georgia Code Annotated) provides in part:
"Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid ...." (Emphasis added)
The word damaged as used in this paragraph has been defined many times by our appellate courts. In the case of Austin v. Augusta Terminal Ry. Co., 108 Ga. 671 (1898), the Supreme Court stated:
"To 'damage' property within the meaning of the Constitution, there must be some physical interference with the property or physical interference with the right or use appurtenant to property .... "
Moreover, the measure of damage as used in the Constitution, 2-301, supra, has been the subject matter of many cases before our appellate courts. The case of Bibb County v. Green, 42 Ga. App. 552 (1931), the Georgia Court of Appeals held that, under this paragraph (Constitution) if private property is taken or damaged, even by prudent and proper exercise of power conferred by statute, the owner is entitled to just compensation in the amount represented by differences between market value of the property before and after taking for public purposes. The same thing was stated another way in the case of Central Georgia Power Co. v. Mays, 137 Ga. 120 (1911), where the Supreme Court stated that in assessing damages where property is taken for public purposes:
"There are two elements to be considered: First, the market value of the property actually taken; and, second, the consequential damages which naturally and proximately arise to

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the remainder of the owner's property from the taking of that part which is taken and devoting it to public purposes."
Speculative, remote or imaginary damages are not recoverable; damages recoverable are for substantial injury to property, that is real damages affecting the market value, Elbert County v. Swift, 2 Ga. App. 47 (1907).
Certainly change of access or a reduction of access to any particular highway may "affect" the market value of the property. This is especially true if it is a business site such as a motel. In this connection see the case of State Highway Board v. Baxter, 167 Ga. 124 (1928), where the Supreme Court held:
"1. Owners of land abutting upon a highway have the right to use and enjoy the highway in common with other members of the public; and in addition they have an easement of access to their land abutting upon the highway, arising from the ownership of such land contiguous to the highway, which easement of access does not belong to the public generally, and which exists regardless of whether the fee of the highway is in said owners or not.
"(a) This easement 'includes the right of ingress, egress, and regress, a right of way from a locus a quo to the locus ad quem, and from the latter forth to any other spot to which the party may lawfully go, or back to the locus a quo.'
"(b) Where a highway is laid out, and an overpass over a railroad is constructed with approaches, the owner of abutting land has a right of access to such approaches.
"(c) Such owner, however, is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway, if entire access has not been cut off, and if he is offered a convenient access to his property and to improvements thereon, and his means of ingress and egress are not substantially interfered with by the public. . . . .
"2. This easement of access is a property right, of which the landowner can not be deprived upon the ground that the safety of the public traveling upon the highway may be endangered by the exercise of this easement by the abutting landowner, without just and ade,quate compensation being first paid to the owner. Under its power and discretion in the location, construction, and maintenance of State-aid roads, the State Highway Board can not deprive the owners of land abutting thereon of their easement of access, without first paying to such owners just and adequate compensation therefor.'' (Emphasis added)
Therefore, it is my opinion that the above question must be answered in the affirmative.

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July 7, 1964
OPINION TO THE GOVERNOR'S COMMISSION FOR EFFICIENCY AND IMPROVEMENT IN GOVERNMENT
I wish to acknowledge receipt of your letter in which you advise that several departments of the State Government have initiated studies of their departments with the entire costs of conducting said studies to be paid by the departments. You further advise that the assistance of the Governor's Commission for Efficiency and Improvement in Government has been requested for the purpose of supervising, coordinating, counseling, and advising with consultants hired to make those studies, and that final reports have and will be prepared and delivered to the departments and the Governor's Commission for such use as the Commission deems fit in reporting to the Governor and the General Assembly.
You request my opinion as to whether, in the cases cited above, the limitations set out in 5 of the Resolution creating the Governor's Commission with respect to expenditures, and the provisions of 10 of said Resolution providing funds to effectuate the provisions of the Governor's Commission from funds appropriated to the legislative branch and "from any other funds available," are applicable.
Section 5 of the Resolution creating the Governor's Commission provides:
"The Commission shall not expend more than a total of $150,000.00 in the biennium beginning July 1, 1963, and ending June 30, 1965, and shall not expend more than $115,000.00 in the period beginning July 1, 1965, and ending on the date the Commission stands abolished, as provided in section 1 of this resolution.... "
Section 10 of the Resolution provides:
"The funds necessary to effectuate the provisions of this Resolution shall come from the funds appropriated to or available to the Legislative Branch and from any other available funds."
Giving 10 its reasonable and logical meaning, I construe this to be applicable only to the duties of the Commission as set out in 3 of the Resolution, which provides:
"The _Commission shall conduct studies, research, investigations and surveys into the organization and operation of the several agencies, departments, boards, commissions and public authorities of this state, and prepare and submit to the Governor and the General Assembly from time to time its reports setting forth findings and recommendations with respect to the more efficient and economical operation of the state government, together with plans and suggested legislation for the reorganization of such d~partments and other agencies in such manner as to improve public administration." (Emphasis added)

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Therefore, it is my opinion that any studies or surveys initiated and conducted by departments of the State Government, with the entire costs of conducting said studies to be paid by the departments, the costs of said studies should not be included in "from any other available funds," nor should they be included in the computation of the limited expenditures set out in 5 of the Resolution creating the Governor's Commission for Efficiency and Improvement in Government.
July 8, 1964
LABOR RELATIONS
This is in reply to your letter concerning the legal status of teachers with respect to collective bargaining and the right to strike.
1. The teachers in Georgia have no legal right to require their employers (the local school boards) to bargain collectively. The reason is that neither the National Labor Relations Act (29 U.S.C.A. 151, et seq.) nor any applicable statute of this State (see e.g. Georgia Code Ann. 54-901) creates such a right. [There is, of course, no right of an employee at common law to require his employer to bargain collectively.]
2. Although I am not aware of any law in this State which expressly prohibits a teacher from striking, it would constitute a breach of the contract of employment between the teacher and local board of education and justify the dismissal of the teacher by the local board of education if the board should so desire. The reason is that the employer-employee relationship between the teacher and local board is basically a contractual relationship and the failure of one party to perform, as in contract situations generally, gives the injured party a right to either rescind the contract or bring an action for damages caused by the breach.
3. It is my personal opinion that while teacher strikes may not be a danger to public safety, they are detrimental to public welfare for the obvious reason that any interference with the education of our children is contrary to the interests of society.
July 9, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge receipt of your letter requesting my official opinion as to whether the language of Georgia Code Ann. 92A608, is sufficiently broad to authorize the revocation of a driver's license upon an out-of-state conviction, plea of quilty, or forfeiture of bond.

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The courts of Georgia have not decided any cases which construe this Code section as regards the particular point involved. However, other states have Code sections specifically providing for revocation of license for out-of-state convictions and these provisions have generally been held proper because the right to operate a motor vehicle is not a contract or property right, but the exercise of a mere privilege subject to the controls imposed by the licensing state.
In statutes of this nature, it is generally considered to be the intent of the legislature to provide for controls and safeguards of public safety. Further, the jurisdictions considering this matter have held that where a person was convicted of violating the laws of one state, doubt was cast upon his willingness to abide by and comply with the laws of his home state, since this indicated a lack of concern for the rules of the road.
The crux of this matter, for your purposes, would be whether the Georgia statute, in referring to "any court," was broad enough to mean out-of-state courts as well as Georgia courts. In view of purposes of the statute generally to provide for controls and safeguards for public safety and in the absence of any specific limiting language in the statute, I conclude that the provision is broad enough to cover convictions in out-of-state courts.
Therefore, it is my opinion that the Department is within its authority under the provisions of 92A-608 to revoke driver's license for out-of-state convictions, provided, however, such convictions are for offenses which would be grounds for revocation if committed in Georgia.
July 14, 1964
OPINION TO THE SECRETARY OF STATE
This will acknowledge receipt of your letter requesting my opinion as to which would be the proper county in which a corporation should bring dissolution proceedings.
I understand from your letter that the corporation in question was originally chartered in Chatham County but that the charter was subsequently amended in Emanuel County, changing the principal office to Emanuel County.
Although a strong argument could be made for dissolving corporations pursuant to Georgia Code Ann. 22-1301 and 22-1302, which provide that they should be dissolved in the county in which the charter was granted, it would appear that the Corporation Act of 1938 (Georgia Laws 1937-38, Extra Sess., pp. 214, et seq.) superseded Chapter 22-13 in its entirety.
It is my opinion that corporations are to be dissolved pursuant to Georgia Code Ann. 22-1873 which provides that petitions "shall be filed in the manner hereinbefore provided for the amendment of the

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charter." Referring to the amendatory process found in Georgia Code Ann. 22-1818 which provides that charters are amended upon petition of the corporation "being presented to the superior court of the county where the principal office of the corporation is located ...," it is evident that the Corporation Act of 1938 intended that dissolution be ordered by the superior court of the county of the principal place of business.
This procedure appears equitable in that persons interested in the corporation would expect actions and advertisements pertaining to its welfare and continued existence to be taken in the county of its principal activity.
Therefore, I am of the opinion that a corporation seeking dissolution should bring action in the county of its principal office.
July 15, 1964
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether the recently enacted Civil Rights Bill (H.R. 7152; 88th Congress, Second Session) is applicable to, or affects, any of the prevailing practices in the State prison system.
After examination of this Act, I have concluded that it in no way affects the prisons of this State.
July 16, 1964
LEGAL COUNSEL FOR THE MENTALLY ILL
I wish to acknowledge receipt of your letter requesting my unofficial opinion on Georgia Code Ann. 88-506 (b) (d), (Georgia Laws 1964, pp. 534-535) with reference to appointing an attorney for mentally ill persons in need of hospitalization.
As you point out, the last two sentences in 88-506 (d) provide: "Provided, however, that in the event the allegedly mentally ill person shall be financially unable to employ counsel to represent said person in said hearing, then the ordinary shall appoint an attorne'y to rep,resent said person. The attorney so appointed shall be compensated in the same manner and in the same amount as the members of the commission, but he shall not be a member of the commission." (Emphasis ours)
It is my opinion that the word "shall" makes it mandatory that an attorney be appointed in every case where the mentally ill person has no counsel. As you point out, a truly mentally ill person might decline the appointment of counsel, and it seems to me that any ex- . pression with respect to the appointment of counsel of a mentally ill person should be disregarded.

527
July 17, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I have your letter in which you state that the "Water Quality Control Act" (Georgia Laws 1964, pp. 416-436) provides in 9 and elsewhere for the transfer of certain facilities, personnel, funds and functions from the Georgia Department of Public Health to the Georgia Water Quality Control Board. You request my opinion as to how the Department of Public Health can most effectively comply with this law, particularly in view of the past work assignments within the Department and under the existing appropriations bill. For the convenience of all parties concerned, I am setting out herewith, in full, the provisions of 9 of the Act:
"Section 9. Transfer of Facilities, Personnel, Funds and Functions; Legal Successor- All facilities, resources, property and equipment heretofore utilized for Water Quality Control or other purposes defined in this Act which are now under the administrative control of the Department of Public Health, and all authority, duties, functions, and responsibilities respecting such facilities, and their administration, control, conduct, and operation which, prior to enactment of this Act, was vested in Department of Public Health, or any other department, agency, bureau, instrumentality or official of the State of Georgia, are hereby transferred to the Division for Georgia Water Quality Control, and whenever the Department of Public Health or any other such Department, agency, bureau, instrumentality or official of the State of Georgia is referred to in any Act of the General Assembly in connection with such authority, duties, functions, and responsibilities or administration, control, conduct, or operation of such facilities, it shall be deemed to refer to the Division for Georgia Water Quality Control.
"All State employees and personnel employed on the effective date of this Act at the facilities transferred to the Division for Georgia Water Quality Control by the preceding paragraph, and all employees and personnel of the Department of Public Health who, on the effective date of this Act, are engaged exclusively in performance of the stated purposes of this Act, are hereby transferred to the Division for Georgia Water Quality Control.
"All funds from private sources, and all appropriations, allocations and other funds, State or Federal, now available or to become available to the State or to the Department of Public Health by virtue of any statute or constitutional provision, or continuation thereof, for the administration, control, conduct or operation of facilities transferred to the Division by this Section or for payment of salaries or wages of employees and personnel transferred to the Division by this Section or otherwise for the performance of powers, duties, and functions herein vested in the Division, are hereby transferred to the Division for the Georgia Water Quality Control.

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"All water quality control and other functions, duties and responsibilities provided for in this Act, are hereby transferred to the Division for Georgia Water Quality Control and any reference to such department or departments, agency, bureau, instrumentality or official in any such Act of the General Assembly shall be deemed to refer to the Division for Georgia Water Quality Control.
"The facilities transferred to the Division by this Section are hereby restablished, reconstituted, and shall continue in existence and operation under the jurisdiction and control of the Division for the purposes provided for herein. All liabilities and obligations respecting said facilities, contractual or otherwise, are hereby transferred to and shall be assumed by the Division as legal successor thereto. No legal proceedings shall be abated because of any transfers made in this Section, but the appropriate party exercising like authority or performing like duties, functions or responsibilities shall be substituted in said proceedings."
I am advised that there are no facilities, personnel or funds that have in the past been used one hundred per cent by the Department of Health or any division thereof for "water quality control or other purposes defined in this Act," therefore an easy implementation and compliance with 9 of the Act may be effected. It is my suggestion that a memorandum of understanding be prepared and entered into between the Department of Public Health and its Division for Georgia Water Quality Control, by and through the State Water Quality Control Board of the State of Georgia. This memorandum of understanding would reflect the percentage proration of use of facilities, personnel, funds, resources, property and equipment heretofore utilized for water quality control or other purposes defined in the subject Act, and any other percentage and proration of use of such facilities, personnel, funds, resources, property and equipment. It seems to me that since there is no line appropriation to the Department of Public Health specifically for water quality control or other purposes defined in the Act, that the only practical and reasonable method of implementing a transfer as provided in 9 of the Act could be effected by a memorandum of understanding providing for a prorated or percentage-wise transfer.
I would also suggest that the transfer or expenditure of any funds on a prorated basis to the Division for Water Quality Control be affected upon authorization of the Executive Secretary of the Georgia Water Quality Control Division.
We will be happy to prepare the proposed memorandum of understanding if you will furnish us with a complete breakdown of the proration of all facilities, personnel, funds, resources, property and equipment where water quality control or other purposes defined in the Act are involved.

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July 17, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I wish to acknowledge receipt of your letter enclosing a copy of the lease between the Regents of the University System of Georgia and the American Oil Company, dated August 1, 1947, in which you request my opinion as to whether or not the Chairman of the Board and the Executive Secretary of the Board of Regents have the authority to execute a lease cancellation at the request of the Georgih Institute of Technology.
The lease between the American Oil Company and the Regents of the University System of Georgia, dated August 1, 1947, was executed on behalf of the Lessor, Regents of the University System of Georgia, by the Chairman and attested by the Executive Secretary, and as required by law (Georgia Code Ann. 32-141), was approved by the Governor. That Code section provides in part that "All properties owned or held by the Regents of the University System of Georgia pursuant to this Title which in 32-139 are declared to be the public property of the State, may be sold, leased, or otherwise disposed of by the said Regents subject to the approval of the Governor, whenever the Board of Regents may deem such sale, lease, or other disposition to the best interests of the university system: Provided, that the Board of Regents shall first determine that such property can no longer be advantageously used in the university system.... "
Section 5, Subparagraph (c) provides, in part:
"It is understood and agreed that the Lessor reserves the right to terminate this lease at the expiration of the original seven-year term hereof or at any time during any of the renewal terms set forth in Subparagraphs (a), (b) and (c) above, upon six months' written notice in the event Lessor shall require the demised premises for the purpose of erecting thereon permanent buildings as part of its educational facilities."
It is my understanding that the notification of cancellation as required by the lease was given to the American Oil Company, signed by the Chairman and the Executive Secretary with the effective date of cancellation, July 1, 1964.
It is my opinion that even though Georgia Code Ann. 32-141, requires the approval of the Governor as to any sale, lease or other disposition of property held by the Regents, the Governor is not the Lessor; the Regents is the Lessor, and it is the proper party under the provisions of 5 (b) (c) as Lessor to give the notice of termination or cancellation of the lease by and through its Chairman and Executive Secretary without the approval of the Governor.
It is my further opinion that although, under the general law, any termination or cancellation of a contract should be executed with the same solemity and by the same parties as executed the original agreement, under the provisions of 32-141 the requirement that the

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Governor approve the lease of the Regents' property does not make him a party to the lease agreement. That provision was added by the legislature as a general safeguard covering the disposition of any State property and would not be required for the cancellation of a lease which would in effect be a reacquisition of a previous leasehold interest granted by the original lease agreement.
July 20, 1964
OPINION TO THE STATE HIGHWAY DEPARTMENT
You request my opinion as to whether or not the State Highway Department can legally expend funds on a Rural Roads Authority project and/or a Georgia State Highway Authority project, for maintenance and reconstruction of said project, without transferring title to the right of way to the State Highway Department or to the county where the project is located.
The Rural Roads Authority Act (Georgia Laws 1955, p. 124, et seq.), is unofficially codified in the Georgia Code Annotated Chapter 95-26. The Georgia State Highway Authority Act (Georgia Laws 1953, p. 626; Georgia Laws 1961, p. 3), is unofficially codified in the Georgia Code Annotated Chapter 95-23.
Georgia Laws 1955, p. 124, et seq., which forms the basis for Chapter 95-26, contains the following preamble:
"Whereas, the General Assembly of Georgia has determined that the system of roads in the rural areas of this State not encompassed in the present State Highway system is not adequate for the reasonable needs of the citizens of this State residing in the rural areas ; and
"Whereas, the General Assembly has found an acute need for the improvement and extension of such roads in the rural areas to the end that such citizens may enjoy safe and passable roads throughout the year for the transportation of themselves and the produce of their farms, and the public welfare will be served by an adequate system of rural roads; and
"Whereas, the revenues arising from the increase in the economy will contribute to the amortization of the cost of these improved roads ; and
"Whereas, the General Assembly deems it advisable and to the best interests of this State and its citizens to insure an adequate system of rural roads by means of long term revenue bond financing ;
"Now, Therefore, be it enacted by the General Assembly of Georgia . . . ."
Georgia Laws 1961, pp. 3, 4, which forms the basis for Chapter 95-23, as amended, also contains a preamble which provides, in part:

531
"Whereas, the General Assembly of Georgia has determiles of primary and secondary roads, the maintenance and immined that the State Highway System now includes 16,000 provement of which is by law the duty of the State Highway Board; ...." (Emphasis added)
Section 95-2638 of the Georgia Code Annotated, (Rural Roads Authority Act), provides:
"This Chapter being for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes thereof."
This identical language is contained in 95-2337 of the Georgia Code Annotated, which relates to the Georgia State Highway Authority.
It should be noted at this point that Acts of 1961, page 3, changed the title of the Authority created by Chapter 95-23 of the Code from the "State Bridge Building Authority" and expanded its powers accordingly. In a preamble to this Act, it was stated that the General Assembly considered the reconstruction of existing highways of great importance and more economical than the creation of a new system.
Your question clearly indicates that you are inquiring about situations where a lease agreement exists between the Authority and the State Highway Department. As provided by the terms of the Act creating the Authority, title to the right of way has been transferred to the Authority and "leased" to the State Highway Department.
Section 95-2606 (Rural Roads Authority) and 95-2301 (Georgia State Highway Authority) of the Georgia Code Annotated, provide for the conveyance of property by the State to the Authority. Sections 95-2610 and 95-2308 provide for "lease" of property by the State Highway Department to the Authority.
There is no provision for the State Highway Department to expend funds, on Authority projects, other than as provided by law. However, 95-2610, subparagraph (3), (Rural Roads Authority) and 95-2309, subsection (3), each contain identical language, as follows:
"The Authority, as lessor, is authorized to lease any project or group of projects to the State and the State Highway Department as lessees, and the Governor, on behalf of the State, and the State Highway Board, on behalf of the State Highway Department, are authorized to execute and enter upon such leases for the use of a project or group of projects by the State, the State Highway Department, and the general public, on the terms and conditions hereinafter set forth: ...
"(3) To pay the cost of Maintaining, repairing and operating such project or projects.... " (Emphasis added)
These laws are self-explanatory and need little interpretation and construction.
Your attention is called to the provisions of 102-102 of the Georgia Code Annotated, Construction of Statutes (9), which includes the following provision:

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"In all interpretations the courts shall look diligently for the intention of the General Assembly ...."
The notes to this Code section include references to many cases which hold generally that whenever the statute is clear and unambiguous, it will be held to mean what has been clearly expressed.
In the case of Standard Oil Company of Kentucky v. State Revenue Commissioner, 179 Ga. 371, 373 (1934), the Court held that whenever the language of the statute is plain, it is not open to construction.
In my opinion, the language of 95-2610 and 95-2308, supra, as well as the other statutes therein cited, are plain, clear and unambiguous and mean exactly what they clearly express.
I therefore conclude that the State Highway Department may legally expend funds on a Rural Roads Authority project and/or a Georgia State Highway Authority project "to pay the cost of maintaining, repairing and operating such project or projects," without transferring title to the right of way to the State Highway Department or to the County where the project is located.
July 21, 1964
OPINION TO THE GOVERNOR
I have for acknowledgment your letter requesting my opinion as to whether you have the authority to authorize the Georgia Bureau of Investigation to conduct investigations and make arrests in any county or municipality of this State.
Section 92A-242 of the Georgia Code Annotated provides, in part, with respect to duties of the State Patrol:
"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 committed 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.
Section 92A-302 of the Georgia Code Annotated reads in part as follows:
"The members of the Bureau [of Investigation] shall and are hereby vested with, in addition to the duties herein

533
provided, the same authority, powers and duties as are possesed by the members of the Uniform Division under the provisions of this Title."
I have previously ruled, in an opinion rendered to you dated February 7, 1963, in connection with the request of a judge of the superior court for assistance under the provisions of 92A-242, cited above, that the provisions of said code section apply equally to members of the Uniform Division of the Georgia State Patrol and to members of the Bureau of Investigation.
The Act creating the Department of Public Safety, set out in Georgia Laws 1937, page 322, specifically at page 328, Article II., 1, states:
"There is hereby created and established a division of the Department of Public Safety to be known as the Uniform Division, the members of which shall be known and designated as the 'Georgia State Patrol,' ...."
Article III., 1, of that Act, at page 340, provides:
"The Commissioner of the Department of Public Safety, with the approval of the Department of Public Safety, is authorized to establish a division of Criminal Identification, Detection, Prevention and Investigation ...."
Georgia Laws 1941, page 277, 3, at page 278, changes the name of the "Division of Criminal Identification" to "Bureau of Investigation;" and in amending the 1937 Act, 4, adds the provision:
"The members of the Bureau of Investigation shall be 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 Act."
Hence, I concluded in my opinion of February 7, 1963, and now affirm, that the provisions of 92A-242 of the Georgia Code Annotated (Georgia Laws 1956, page 495), granting the Governor of Georgia the power to 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, include the power to so direct the members of the Georgia Bureau of Investigation.
It is my opinion, therefore, that the Governor has the power and the authority to authorize the Georgia Bureau of Investigation to conduct investigations and make arrests in any criminal case in any county or municipality of this State.

534
July 22, 1964
GEORGIA HEALTH CODE
You ask the question as to whether Georgia Code Ann. 88-1723 (a), "Disclosure of Records," (the New Georgia Health Code, Georgia Laws 1964, page 499, at page 594), repeals 88-1124 (3) (Acts of 1945, page 236; Acts of 1953, page 140).
Upon the enactment of the New Georgia Health Code in 1964, many prior code sections of the Georgia Code Annotated, and many prior Acts of the Georgia General Assembly were repealed. In the New Georgia Health Code (Georgia Laws of 1964, page 653) the following statement appears:
"The following Acts enacted subsequent to the Georgia Code of 1933 and the amendments as shown to said Acts are hereby repealed, but in no case or event shall any prior Acts or laws previously repealed be hereby restored, revised or reenacted:
"
Following the above statement at page 656 of the 1964 Laws is the following:
"56. An Act approved March 8, 1945 (Ga. L. 1945, p. 236) as amended by an Act approved February 15, 1952 (Ga. L. 1952, p. 208), and as further amended by an Act approved February 19, 1953 (Ga. L. 1953, Jan.-Feb. Sess., p. 140), and an Act approved February 21, 1955 (Ga. L. 1955 p. 208) and an Act approved March 17, 1959 (Ga. L. 1959, p. 304) and an Act approved March 7, 1961 (Ga. L. 1961, p. 120) and an Act approved March 17, 1960 (Ga. L. 1960, p. 1130) relating to a complete and comprehensive vital statistics law for the State of Georgia."
It is my unofficial opinion, therefore, that the provisions of 88-1124, and in fact, the entire Chapter 88-11 of the Georgia Code Annotated were repealed by the enactment of the new Georgia Health Code.
With respect to the disclosure of records of marriages, divorces, and annulments of marriage the Legislature, by the enactment of the new Health Code, has declared the law of this State with respect to the disclosure of records as set out in 88-1723 (a) of the new Georgia Health Code to be as follows:
"To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration by the Department, it shall be unlawful for any person to permit inspection of, or disclose information contained in vital records, or to copy or issue a copy of all or part of any such record except as authorized by regulation or when so ordered by a superior court; provided, however, that the provisions of this Subsection shall not apply to records of marriages, divorces, and annulments of marriages filed in the office of the ordinary or the superior court as the case may be." (Emphasis added)

535
July 27, 1964
PURCHASING DEPARTMENT
This is in reply to your letter in which you stated that you have information that the warden of Upson County owns a wholesale gasoline and oil business in Thomaston, Georgia, and you wish to know whether your department may legally permit the firm's selling or bidding on State gasoline requirements in view of the fact that a county official is involved.
Section 2 of Act 736, Georgia Laws 1964, p. 261 provides as follows:
"Interested Persons Acting as Government Agents. Whoever being an officer, agent or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of any political subdivision or municipal corporation of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of any political subdivision or municipal corporation of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia or by appropriate ordinance or resolution of the political subdivision or municipal corporation, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels to the political subdivisions, municipal or other public corporations, or other public organizations, of the State of Georgia, or any agency thereof in excess of $100.00 unless sold as a result of bona fide competitive bidding. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one year nor more than five years. No act shall be considered a violation of any provision of this section unless the same is done with intent to defraud the political subdivision, municipal or other public corporations, or other public organizations, of the State of Georgia or any agency thereof."
From the foregoing, it would appear that a county warden would be prohibited from doing business with an agency of the State "in excess of $100.00 unless sold as a result of bona fide competitive bidding." On the assumption that transactions in this situation could from time to time very easily exceed $100.00, and further based upon our understanding that this particular instance is not a case in which competitive bidding would be involved, we must conclude that it would be improper for your department to continue to do business with the company in which the warden has an interest, unless and until the warden can prove to your satisfaction to the contrary.

536
July 28, 1964
OPINION TO THE PUBLIC SERVICE COMMISSION
Your letter states that the City of Atlanta proposes to extend Wall Street from the point of its present termination near Peachtree Street to a point adjacent to the Techwood Viaduct, and that such an extension will necessitate the relocation of certain tracks of the Western and Atlantic Railroad in this area and will have other effects on the operations of the lessee of the Railroad. You inquire as to the jurisdiction of the Georgia Public Service Commission in this matter.
The question as to the authorization of the proposed relocation of this trackage and its resulting effect on railroad operations appears to me to be merely an operational matter which is well within the jurisdiction of the Public Service Commission under the general railroad regulatory statutes of this State, and specifically under 91-113A of the State Properties Control Code (Georgia Laws 1964, pp. 146, 156) which provides that "Any lessee of the Western and Atlantic Railroad in operating it or any part thereof for railroad purposes shall be subject to the regulation of the Georgia Public Service Commission."
If the proposed extension of Wall Street will require the purchase~ lease or other encumbrance of any. part of the property of the Western and Atlantic Railroad by the City of Atlanta, then such a matter would address itself to the State Properties Control Commission or the General Assembly, depending upon the nature of the encumbrance. In any event, the Public Service Commission would have the power to investigate and approve or disapprove the proposed relocation of trackage and any resulting effects on railroad operations, on the ground that such matters are merely operational features falling under the Commission's regulatory jurisdiction over railroads.
July 28, 1964
PUBLIC SERVICE COMMISSIONER EMERITUS
Thank you for your letter of July 27, 1964, stating that you are interested in purchasing stock in a public utility regulated by the Georgia Public Service Commission and inquiring as to whether the provisions of Georgia Code Ann. 93-202 would prohibit such a purchase by virtue of your holding the position of Public Service Commissioner Emeritus under the provisions of an Act approved March 7, 1957 (Georgia Laws 1957, p. 206; Georgia Code Ann. Ch. 78-12), as amended.
An examination of 93-202 clearly reveals that its application is limited to the five Commissioners comprising the Public Service Commission. Furthermore, the 1957 Emeritus Act referred to above contains no provision prohibiting the contemplated purchase. Therefore, it is my opinion that you may acquire the stock in question without fear of violating either of these statutory provisions.

537
July 31, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I am in receipt of your request for my opinion as to the legality of the proposed transfer of funds in the University of Georgia Fund for the Advancement of Art to the University of Georgia Foundation for the Hodgson-Dodd Fund.
I have reviewed a copy of the June 27, 1944, memorandum creating the University of Georgia Fund for the Advancement of Art, together with the letter, dated March 31, 1964, from the Committee of the University of Georgia Fund for the Advancement of Art, composed of Lamar Dodd and William Ronald Taylor, requesting, authorizing, and approving the transfer of the funds. I have also reviewed the resolution adopted by the Board of Regents on Aprilll, 1964, authorizing and approving said transfer.
It is my opinion that pursuant to the first and second paragraphs of the original gift, creating the original trust on June 27, 1944, and further, pursuant to the provisions of the Georgia Code Annotated 108-209 and 108-212, that the proposed transfers are legal and valid, and may be effected without obtaining any order of the superior court.
I would suggest that the draft of the resolution adopted by the Board of Regents on April 11, 1964, be revised specifically to provide that the proposed transfers are to be effected pursuant to the first and second paragraphs of the trust agreement, dated June 27, 1944, and pursuant to the authorization of the Committee, dated March 31, 1964, and state that all of the purposes of the original agreement will be carried out, and that the funds transferred will be used for the same purposes as the original trust, with the understanding that the funds so transferred become an "Art Portion of the Hodgson-Dodd Fund" to be used for visual arts.
Pursuant to the provisions of 108-212 of the Georgia Code Annotated, as Attorney General representing the interests of beneficiaries in charitable trusts, and the interests of the State of Georgia as parens patriae in all legal matter pertaining to the administration and disposition of charitable trusts, I approve the proposed transfer.
July 31, 1964
OPINION TO THE DEPARTMENT OF BANKING
This letter is in response to your request for an opinion regarding the negotiability of a certain savings certificate issued by the Moultrie Banking Company, Moultrie, Georgia.
The particular wording which affects this instrument is the

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phrase "which amount the bank agrees to pay to the Registered Owner hereof."
The instrument in question falls within the securities section of the Uniform Commercial Code (Georgia Code Ann. 109A-8-102; Georgia Laws 1963, pp. 188, 195) which is as follows:
"A 'security' is an instrument which is issued in ... registered form ; and is of a type commonly dealt in upon securities ... markets or commonly recognized in any area which it is issued or dealt in as a medium for investment; and is either one of a class or series . . . evidences a share, participation ... or evidences an obligation of the issuer.
"A security is in 'registered form' when it specifies a person entitled to the security or to the rights it evidence and when its transfer may be registered upon books maintained for that purpose by or on behalf of an issuer or the security so states."
As an explanation of a security in registered form, 109A-8-401 (Georgia Laws 1962, pp. 156, 374) will apply:
"(1) Where a security in registered form is presented to the issuer with a request to register transfer, the issuer is under a duty to register the transfer as requested if (a) the security is indorsed by the appropriate person or persons; and (b) reasonable assurance is given that those indorsements are genuine and effective; and (c) the issuer has no duty to inquire into adverse claims or has discharged any such duty; and (d) any applicable law relating to the collection of taxes has been complied with; and (e) the transfer is in fact rightful or is to a bona fide purchaser.
"(2) Where an issuer is under a duty to register a transfer of a security the issuer is also liable to the person presenting it for registration or his principal for loss resulting from any unreasonable delay in registration or from failure or refusal to register the transfer."
Evidently the bank, in taking the position that the instrument (security ) is non-negotiable, is taking the position that the phrase "to pay to the Registered Owner thereof" is restrictive.
This contention is correct in one aspect in that the bank is under the obligation to pay only if the person making presentment is a registered owner.
However, if the holder is a purchaser for value and requests the bank to register him as the new holder then the bank, at the proper time, will have to honor the obligation.
Therefore, within the meaning of 109A-401 the security is a negotiable instrument.

539
July 31, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you raise a question concerning an opinion rendered by this office on September 9, 1963. In that opinion I stated that an advisory board of a juvenile court appointed under the provisions of Georgia Code Ann. 24-2434 did not have any right to visit foster homes used by the Department of Family and Children Services for the care of children referred to it by the court.
It appears that this opinion has been questioned on the ground that one clause of the statute in question refers to an advisory board's duty to make reports [not, it should be noted, to conduct "inspections"] to the juvenile court on the conditions of children "received by or in charge of any persons, institutions, or associations...." In answering your letter it is assumed that the situation with which you are concerned is one where the juvenile court's order places full custody, care and control of the child in the Department of Family and Children Services and the Department subsequently places the child in a foster home, and not one where the child is placed with foster parents directly by the juvenile court.
Subject to this assumption, my opinion and the reasons therefor are as follows:
OPINION
Upon reconsideration, I still believe that the opinion of this office rendered on September 9, 1963, is correct and that advisory board members appointed by juvenile court judges have no right under Georgia Code Ann. 24-2434 (1) to visit foster homes used by the Department of Family and Children Services for the care of children whose legal custody it has acquired under order of the juvenile court.
DISCUSSION
Georgia Code Ann. 24-2434 (1) provides that it shall be the duty of an advisory board appointed by the juvenile court:
"To visit as often as possible all institutions, societies or associations receiving children under this Chapter. Such visits shall be made by not less than two members of said board, who shall go together and make a report, and said board shall report to the court from time to time the conditions of children received by or in charge of any persons, institutions, or associations and shall make an annual report to the judge of said court."
In the opinion rendered by this office on September 9, 1963, with respect to this code provision, I stated:
"In my opinion, a foster home is in essence a private home and cannot be regarded as an institution, society or associa-

540
tion; therefore, advisory board members appointed by juvenile court judges do not have the right to visit approved boarding homes which the Department of Family and Children Services are using for the care of children referred to it by the court."
It appears that the crux of the question now posed by your letter seeking clarification of this ruling revolves around whether this opinion is valid in light of the clause in the above quoted portion of Georgia Code Ann. 24-2434 referring to reports by the board to the court on the conditions of children received by or in charge of any persons, institutions, or associations ...." [Emphasis added] 1
Upon re-examination of the matter, I feel that seizing upon the use of the word "persons" in the clause in question to claim a right of conducting inspection visits to foster homes used by the Department for the care of children whose custody it has been given by a juvenile court well illustrates the wisdom of the rule requiring statutory interpretation to proceed from a consideration of the statute as a whole rather than from an inquiry into one particular clause, which, when taken out of context, could lead to results considerably different from those intended by the General Assembly. Considered as a whole, the statute deals with (1) inspection visits and (2) reports on the condition of children which the court has placed in the care of persons or agencies after terminating the rights of the natural parents. That the portion of the statute dealing with visits by board members to "institutions, societies or associations" does not empower the advisory board to visit foster homes used by the Department would seem to be fully covered by the prior opinion of this office dated September 9, 1963. Hence, the only question now to be answered is whether the section dealing with reports upon the condition of children somehow contains an "implied" power to conduct inspection visits which is broader than that given by the portion "expressly" relating to such visits. In answering this question I can see no indication that such was the intention of the legislature. I do not believe the courts would lightly attribute such an intention where the obvious result would be dual supervision of foster parents selected for child care by the Department. Such direct dual supervision by the juvenile court's advisory board and the Department would constitute an overlapping which could only lead to confusion and unnecessary annoyance to foster parents, with the probable result that it would reduce the number of individuals willing to perform this worthy service. In addition, such dual supervision would seem to be in conflict with the
1. While it is not overlooked that your letter at one point states the question as being whether it is the foster parents used by the Department or the Department itself which is charged with the care of the children and responsible to the court for their care, it is submitted that an answer to this question depends on the contents of the court order and does not present a question to which a yes-or-no answer can be given by this office. This memorandum, as previously indicated, proceeds on the assumption that the court's order vests custody in the Department of Family and Children Services and not directly in the foster parent.

541
most recent expression of legislative intent, as manifested in the Children and Youth Act of 1963, to place primary responsibility and authority concerning the welfare of children entrusted to the care of the Department's Division for Children and Youth in such Division. See Georgia Code Ann. 99-201 to 99-221. Although there is no question as to the fact that the juvenile court retains jurisdiction over children it has placed with public or private agencies as well as over those it has placed with individuals, and that it has the duty to exercise overall supervision with respect to such children (see Georgia Code Ann. 24-2421, 24-2422), it would seem clear that such an exercise of direct supervision over the agents and employees of the Department (and a foster parent is manifestly in the position of an agent of the Department insofar as child care is concerned) would be wholly inconsistent with the child-care obligations which the General Assembly has vested in the Department, such as the development of
"a comprehensive and coordinated program of public child welfare and youth services, providing for: social services and facilities for children and youth who require care ..." (Georgia Code Ann. 99-202)
and would constitute an unjustified intereference with the broad discretionary powers which the General Assembly has entrusted to the Department with respect to child welfare to achieve this purpose.
For the foregoing reasons, it is my opinion that the prior opinion of this office on the question presented is correct, and that the role of an advisory board created by a juvenile court judge in accordance with the provisions of Georgia Code Ann. 24-2434 is limited, with respect to visits and reports in connection with children whose custody has been granted by the juvenile court to the Department of Family and Children Services, to visits to the Department itself, with the board's reports to the court to be based upon information furnished to it by the Department.
August 4, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge receipt of your letter requesting my official opinion as to the authority of the Department of Public Safety to revoke a driver's license based on a conviction in the Recorder's Court, Macon, Georgia, for the offense of driving while under the influence of intoxicants.
It is provided by 92A-608, Georgia Code Ann., that the Director shall revoke the driver's license of any operator who is convicted in any court of certain enumerated offenses. Among those offenses is driving while under the influence of intoxicants. The provision of this code section is mandatory, vests no discretion in the Director, and the provision must be followed by the Director. The provisions in the

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code section are not limited to convictions in any particular class of courts, but refer to any court in which a conviction may be had for these specific offenses. It is not the prerogative or the duty of the Department of Public Safety nor the State Law Department to go behind the judgments and decisions of any court in the state of Georgia. The burden would be on the defendant by appeal or other collateral attack. For purposes of the administration of the provisions of 92A-608, you are bound by the decisions of such courts until those decisions are modified or reversed by competent judicial authority.
I note that there is attached to your letter an order issued by the City Court of Macon; however, it is my opinion that such order does not modify the obligations of your department under the provisions of 92A-608 in as much as the provisions of a statute take precedence over the provisions of a court decision.
You may consider the above as an opinion of general application for your guidance in future cases of similar import and not simply an opinion limited to the specific case in question.
August 5, 1964
LEGAL PROFESSION
This is in reply to your letter in which you inquired as to the extent to which law students are permitted to represent indigent parties in Georgia.
There are no Georgia statutes dealing specifically with this question, and a search of case law indicates that law studentsnot admitted to the Bar are not able to practice law in any way, including the representation of indigent parties.
Georgia Code Ann. 9-402 states:
"It shall be unlawful for any person other than a duly licensed attorney at law to practice or appear as an attorney at law, for any person other than himself, in any court of this State or before any judicial body...."
Apparently the only Georgia case which has dealt with the ability of law students to represent indigent parties is Jones v. State, 57 Ga. App. 344, 195 S.E. 316 (1938), in which the accused was convicted of the illegal sale of whiskey. In response to a request for counsel, the presiding judge appointed two law students to represent the indigent defendant. The judgment was reversed. Noting that the constitution of the State of Georgia (Georgia Code Ann. 2-105) guaranteed the "privilege and benefit of counsel" to every accused, the court held that the appointment of two law students not yet admitted to practice law did not satisfy the requirement of right to counsel where there was neither waiver of right to counsel nor knowledge on the part of the accused that the students were not lawyers.

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Thus, it appears that law students not yet admitted to practice 1aw are not permitted to represent indigent parties in Georgia.
August 10, 1964
ECONOMIC POISONS ACT
I am pleased to acknowledge receipt of your request for an opinion on whether a device known as an electric ozone generator is subject to registration under the 1950 Georgia Economic Poisons Act.
I would like to call your specific attention to the following sections of the Economic Poisons Act which concern your inquiry.
Section 5-1502 provides in part as follows:
"B. The term 'device' means any instrument or contrivance intended for trllpp:ing, destroying, repelling, or mitigating insects or rodents or destroying, repelling or mitigating fungi or weeds, or such other pests as may be designated by the Commissioner. . . ."
* * * *
"U. The term 'misbranded' shall apply -
"(1) To any economic poison (or device) if its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular; ...."
Section 5-1504 provides in part as follows:
"C. Any manufacturer, importer, jobber, agent, or seller, who sells, offers or exposes for sale, to the final consumer, any economic poison (or device) covered by this Chapter shall procure a 'dealer's regulatory license' from the Commissioner of Agriculture, authorizing such person to sell, exchange, or deal therein, in unbroken original manufacturer's packages of economic poisons (or devices). Such license shall be issued by the Commissioner of Agriculture, without charge, and shall continue in force, unless revoked." (Emphasis added)
Section 5-1506 provides:
"A. The examination of economic poisons (or devices) shall be made by the State Chemist, under the direction of the Commissioner, for the purpose of determining whether they comply with the requirements of this Chapter. If it shall appear from such examination that an economic poison (or device) fails to comply with the provisions of this Chapter, and the Commissioner contemplates instituting criminal proceedings against any person, the Commissioner shall cause appropriate notice to be given to such person. Any person so notified shall be given an opportunity to present his views, either orally or in

544
writing, with regard to such contemplated proceedings and if thereafter in the opinion of the Commissioner it shall appear that the provisions of the Chapter have been violated by such person, then the Commissioner shall refer the facts to the 'solicitor of the court' for the county in which the violation shall have occurred with a copy of the results of the analysis or the examination of such article: Provided, however, that nothing in this Chapter shall be construed as requiring the Commissioner to report for prosecution or for the institution of libel proceedings for minor violations of the Chapter whenever he believes that the public interests will be best served by a suitable notice of warning in writing.
"B. It shall be the duty of each solicitor to whom any such violation is reported to cause appropriate proceedings to be instituted and prosecuted in the court of competent jurisdiction without delay.
"C. The Commissioner shall, by publication in such manner as he may prescribe, give notice of all judgments entered in actions instituted under the authority of this Chapter.
"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."
Section 5-1510 provides in part as follows:
"A. Any economic poison (or device) that is distributed, sold, or offered for sale within this State or delivered for transportation or transported in intrastate commerce or between points within this State through any point outside this State shall be liable to be proceeded against in a court of competent jurisdiction in any county of the State where it may be found and seized for confiscation by process of libel for condemnation:
* * * *
"(2) In the case of a device, if it is misbranded."
It was stated in your memorandum that such device is now being manufactured and sold in this State for the stated purpose of controlling meat spoilage bacteria and fungi in meat markets and packing houses. It is therefore my opinion that such product is subject to registration under the provisisons of the Economic Poisons Act (Georgia Laws 1950, pp. 390, 404, as amended).

545
August 13, 1964
OPINION TO THE COMPTROLLER GENERAL
This is in reply to your letter requesting my official opinion as to whether a corporation known as the "Most Worshipful Prince Hall Free and Accepted Masons, Jurisdiction of Georgia," which is curr.ently paying death benefits to beneficiaries of deceased members of the organization, is a fraternal benefit society subject to regulation in the manner provided by Chapter 56-19 of the 1960 Insurance Code or whether it is one of the societies exempt from regulation by 56-1943 of that Code.
You enclosed a copy of a certificate of membership used by the organization which contains a promise to pay the named beneficiary of a designated member sums prescribed by the by-laws of the Grand Lodge. Sections 24, 25, and 29 of these by-laws are printed on the back of the certificate and provide in substance for the payment of one hundred dollars ($100.00) within ninety (90) days after receipt of proof of death and for the further payment of a sum to be determined by dividing among the claimants for a fiscal year funds placed in a special sinking fund and arising from dues and assessments received.
Your letter states that you are informed that this organization has considerably more than one thousand (1,000) members holding these certificates. You further point out that upon the death of a member who is in good standing and who is eligible for the benefits under the terms of the certificate and by-laws, a claim is filed with the Grand Lodge and, when approved, a check is drawn by the Grand Master and forwarded to the subordinate lodge for delivery to the beneficiary providing that the member as well as his subordinate lodge is in good standing with all dues, taxes, and assessments fully paid.
You point out that it seems to you, and I agree, that if this organization is exempt at all, it is exempt under Paragraph 1 of 56-1943 which provides for the exemption from regulation of:
"(1) Grand or subordinate lodges of societies, orders or associations now doing business in this State which provide benefits exclusively through local or subordinate lodges; ...."
It appears that the organization in question satisfies the first part of the exemption in that it is a grand or subordinate lodge of a society, order, or association now doing business in this State, and was doing business at the time the provision went into effect, January 1, 1961. The question remains as to whether it is one "which provides benefits exclusively through local or subordinate lodges."
You have raised the question as to whether this language limits the exemption to those instances where the local or subordinate lodge pays the benefits directly out of its funds (which may or may not have been received from the Grand Lodge) or whether the exemption also extends to those situations where a single fund accumulated and

.546
:administered by the Grand Lodge is used to pay benefits which are distributed through the assistance of local and subordinate lodges.
The word "exclusively" generally means to the exclusion of all others, without admission of others to participation. Standard Oil Co. of Texas v. State, 142 S.W.2d 519 (Tex. Civ. App. 1940). The word "through" has been given various definitions when construed in conjunction with various status. However, there does not appear to be any decision construing the meaning of the word "through" or the words "exclusively through" in conjunction with a type statute which we have in the instant case. At least one case has held that the word "through" means "by means of; in consequence of; or by reason of." Manufacturer's Nat. Bank of Troy v. United States Fid. & Guar. Co., 218 N. Y. S. 332, 218 App. Div. 455 (1926).
Prior to 1943, regulation of fraternals was provided by the Act approved August 17, 1914 (Georgia Laws 1914, p. 99). Section 29 of that Act provided the exemption as follows:
"Nothing contained in this Act shall be construed to effect [sic] or apply to grand or subordinate lodges of Masons, Odd Fellows or Knights of Pythias ... and the Junior Order of United American Mechanics. . . ."
The 1943 Act (Georgia Laws 1943, pp. 495, 527) adopted the language identical as to that found in the 1960 Code and which we are now analyzing to determine its meaning. There was no language "which provides benefits exclusively through local or subordinate lodges" in the 1914 Act. It appears that when the 1943 Act was passed, instead of listing the exempt societies by name, the Legislature gave a general description of the type societies to be exempt. In describing the societies generally, the words "Grand or subordinate lodges of societies, orders or associations now doing business in this State. . . " were used. This same language, as previously pointed out, was adopted in the 1960 Statute.
A cardinal rule of construction in determining the meaning of a statute is to ascertain the true intention of the Legislature in the passage of the law. Lamons v. Yarbrough, 206 Ga. 50 (1949); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1950). In using the words "Grand or subordinate" it seems clear that the Legislature intended to exempt not only subordinate lodges providing benefits exclusively through such lodges, but also grand lodges providing benefits exclusively through the local lodges. There is no reason to believe the Legislature intended to restrict the exemption to local lodges which pay benefits directly out of their funds, but rather intended the exemption also to apply to situations where the grand lodge accumulates and administers a single fund out of which benefits are distributed through the assistance of local and subordinate lodges. To construe the meaning of this statute otherwise would be giving it an interpretation to the effect that the Legislature in passing the 1943 Act intended to take away the exemption previously given to grand lodges in certain instances where they accumulated and administered a single fund for the payment of benefits with the assistance of local or subordinate lodges. There is no reason to believe that this was the intent of the Legislature.

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It is my opinion that the words "which provide benefits exclusively through local or subordinate lodges" was intended to restrict the payments of benefits to members of local and subordinate lodges and to restrict these benefits to members of local and subordinate lodges to the exclusion of all other persons not holding membership in the particular society, order, or association.
It is my opinion that the exemption referred to extends not only to those instances where the local or subordinate lodge pays benefits directly out of its funds, but also to those situations where a single fund accumulated and administered by the grand lodge is used to pay benefits which are distributed through the assistance of local and subordinate lodges. The exemption, therefore, would apply to the grand lodge in the instant case, the "Most Worshipful Prince Hall Free and Accepted Masons, Jurisdiction of Georgia."
August 14, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you inquire as to the authority of a county board of education to use public school funds for the construction of a baseball field on school property.
It is my opinion that a county board of education may legally use public school funds for the construction of a baseball field on school property if the field is intended for use as a facility of the physical education programs of the school.
It is basic, of course, that public funds cannot be expended unless the expenditure is authorized by law, and that money belonging to the public schools can be used solely for school purposes. Burke v. Wheeler County, 54 Ga. App. 81, 86 (1936) ; see also Georgia Code Ann. 32-942, 92-3708. But Georgia Code Ann. 32-1901 provides:
"The Georgia State Board of Education shall prescribe a course of study in physical education for all common schools, and shall fix the time when said course shall go into effect. This course shall occupy periods totaling not less than 30 minutes each school day which shall be devoted to instructions in health and safety, to physical exercises and to recess play under proper supervision.
"A manual setting out the details of said course of study shall be prepared by the State Superintendent of Schools in cooperation with the State Board of Health and State Board of Education, and such expert advisers as they may choose. Said manual when published shall be sent by said State Board of Education to the teachers of the common schools."
And, 32-1903 expressly authorizes local boards of education to employ supervisors and special teachers of physical education in the same manner as other teachers are employed.

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An official opinion of this office rendered on May 2, 1957, stated that the expenditure of school funds for athletic equipment to be used in the physical education programs of the public schools (e.g., tennis rackets, basketballs, baseballs, etc.) is legal, Ops. Att'y Gen. 115 (1957), and an earlier unofficial opinion declaring that school funds could be used to improve a football field only where title to the property was in the board of education, indicated that such expenditure on a football field was proper (where the title was so held) for the reason that the football field was a facility used in the physical education and training program of the school. Ops. Att'y Gen. 245 (1954-56). In light of the above cited statutes and for the same reasons mentioned in the prior opinions, I believe that the expenditure of public school funds to construct a baseball field for use as a facility of the physical education program of the school system is legal.
In closing, I might further point out that although such construction would be proper only where the purpose of construction is to provide a facility for the school system's physical education program, that does not preclude the local board of education from allowing others to use the field after regular school hours. Georgia Code Ann. 32-1903 provides in pertinent part:
"Boards of education may allow the use of school buildings or school grounds after the regular school hours and during vacation as community centers for the promotion of play and other healthful forms of recreation, under such rules and regulations as to them seem proper."
August 18, 1964
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter concerning cooperation between the county units of your department and the juvenile courts on child welfare problems. It appears that you have urged a relationship where complaints concerning neglected children are to be referred to the county departments in the first instance, with the county department then petitioning the juvenile court to take action should the department deem it necessary for the protection of a neglected child but impossible to accomplish without resort to such legal process.
In particular, you request answers to the following questions:
1. Does the juvenile court judge have the authority to take custody of children alleged to be neglected or dependent, and transfer, by Court Order, legal custody of the children to the county department prior to a hearing?
2. Is the report prepared by a county department worker at the request of the juvenile court admissible as evidence in a juvenile court hearing?

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You have also requested, in the event that I find the "report" mentioned in question two to be inadmissible, that I suggest a modification of juvenile court law which would remedy the situation. When you speak of the admissibility of such reports into evidence, I assume that you refer to a situation where the author of the report would not be present to testify as to its authenticity, to qualify as an expert in the event that the report contains clinical opinions, or to afford adverse parties the opportunity for reasonable cross-examination as to its contents and the basis for any conclusions or observations therein.
My opinions and the reasons therefor are as follows:
OPINIONS
1. Although a juvenile court cannot legally award permanent custody of a child alleged to be neglected or dependent to a county welfare department without prior hearing on the matter, it may, with respect to those children who have come into its temporary care and custody prior to hearing and in accordance with applicable statutes, enter an order transferring temporary care and custody of the child to such county department pending the requisite hearing on the matter of permanent custody.
2. Except where the report of a county welfare worker is authenticated by the testimony of such welfare worker and where the adverse parties are afforded the opportunity of subjecting the worker to reasonable cross-examination as to the contents of the report, it would not be admissible into evidence whether or not the welfare worker has been appointed as a "volunteer probation officer" in order to have such record admitted under Georgia Code Ann. 24-2420. To the extent that 24-2420 may authorize the juvenile court to consider such reports as evidence, I believe the statute to be unconstitutional and thus null and void. (It is assumed that the report contains matter in the way of diagnoses, opinions or observations of the welfare worker which could be affected by his knowledge, memory and judgment, etc., and hence would be inadmissible as business entries under Georgia Code Ann. 38-711.)
3. Because of the fact that my opinion as to the inadmissibility of the reports is based upon constitutional objections under federal and state constitutions, I do not believe that the juvenile court law is amendable to make such records admissible where the author is not present to testify as to the report's authenticity, to qualify as an expert as to opinions expressed in the report (if any) and to afford adverse parties the opportunity to subject him to reasonable crossexamination as to the report's contents.
DISCUSSION
I.
Although the fact that the natural parent, guardian or other person vested with legal custody of a child cannot be divested of permanent custody other than upon a fair hearing is too basic to require citation,

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the juvenile courts are authorized by statute, where the situation requires, to take the child into temporary custody pending hearing on the matter. As stated in Georgia Code Ann. 24-2413 (relating to the summons to be served upon the persons having custody of the child):
"If it appears that the child is in such condition or surroundings that his welfare requires that his custody be immediately assumed by the court, the judge may so order, by endorsement upon the summons, that the officer serving the same shall at once take the child into custody."
It would further seem that Georgia Code Ann. 24-2416 contains sufficient authorization for the juvenile court, pending such hearing, to award temporary care and custody of the child to the county department. The second paragraph of this code section states:
"Provision shall be made for a detention home or homes for temporary detention of children, to be conducted by the court or subject to the supervision of the court or other appropriate public agency, or the court may arrange for the use of private homes for such detention, subject to the supervision of the court or other agency, or may arrange with any institution or agency to receive for temporary care or custody, children within the jurisdiction of the court." (Emphasis added)
Nor do I interpret Tenney v. Tenney, 214 Ga. 209 (1958) [to which you refer.in your letter as possibly prohibiting any transfer of custody-temporary or permanent-without a hearing], as limiting the authority of the juvenile court to place temporary care and custody of a neglected child in a county department. In the Tenney case not only was there a lack of any evidence whatsoever to show a necessity for the court to assume custody, but the court failed to follow the procedure sanctioned by the statute ( 24-2413). In the words of the court:
''That procedure [ 24-2413] was not followed, and we will not by construction hold that that court can take such ex parte action in any other way."
It appears, therefore, that where the proper statutory procedures are followed the Tenney decision is no barrier to the juvenile court's taking temporary custody of a neglected child and, pending the hearing as to permanent custody, transferring actual care and custody over the child to the county department. During the interim period the child would continue to be within the jurisdiction of the court, of course, notwithstanding the temporary placement of actual care and custody in the county department.
II.
The general rule that reports of county welfare departments are not admissible where not properly authenticated and where the writer is not present in court for purposes of cross-examination is no longer open to question. See, e.g., Camp v. Camp, 213 Ga. 65, 66 (1957)

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[which also held ex parte affidavits inadmissible in the trial of a habeas corpus case involving the custody of minor children].
On the other hand, Georgia Code Ann. 24-2420 expressly provides with respect to hearing in the juvenile court:
"The probation officer's investigation, along with other evidence, submitted in court, may be used by the judge in reaching a decision for the best interest and future welfare of the child involved."
And such reports of the court's own officers have been admitted over objection in cases where no constitutional attack on Code 24-2420 was involved. E.g., Springstead v. Cook, 215 Ga. 154 (3) (1959); see also Lantripp v. Lang, 103 Ga. App. 602, 605 (1961). In light of these decisions, question arises as to whether the general exclusion of welfare reports of county departments may be avoided by having the juvenile court appoint the welfare worker who is to make the report a "volunteer probation officer," as is authorized by Georgia Code Ann. 24-2406.
It is my opinion that even though the procedure outlined might be satisfactory from a viewpoint of meeting statutory requirements, it would probably fall under a constitutional attack upon the validity of the statute itself. It is my considered opinion that to the extent that Georgia Code Ann. 24-2420 authorizes the admission into evidence of any probation officer's report (without proper authentication of the report by such officer's testimony, and in the absence of opportunity for adverse parties to subject such officer to reasonable crossexamination) it would violate the "due process" clauses of both federal and State constitutions and hence be null and void. The right to a fair hearing or an opportunity for a fair hearing is one of the more basic essentials in the "due process of law" concept, e.g., Mullane v. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Grannis v. Ordean, 234 U.S. 385, 394 (1914) ; Zachos v. Rowland, 80 Ga. App. 31, 35-36 (1949), and the right to a fair hearing includes the right of reasonable crossexamination. As stated in Market Street Ry. v. Railroad Commission of California, 324 U.S. 548, 562 (1945) :
"Due process, of course, requires . . . that parties have opportunity to subject evidence to the test of cross-examination and rebuttal."
Moreover, the Court of Appeals in Lanthripp v. Lang, supra, would seem to have fairly invited constitutional attack by its heavy emphasis on the failure of the parties there to attack this code section as unconstitutional, to wit:
"Since there was no constitutional attack made on Section 21 of the Juvenile Court Act . . . it was held not to be reversible error ... !' [Emphasis that of the court]
In the event that the question of constitutionality should reach the Supreme Court of Georgia, I believe that the attitude of that Court would most likely be that expressed on behalf of a unanimous court by Chief Justice Duckworth in Camp v. Camp, 213 Ga. 65, 66 (1957), where it was said:

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"We thought that our opinions in [citations omitted] made it crystal clear that the trial courts of this State could not consider reports of the Welfare Departments of the counties in the trial of a case involving the custody of minors. But the judgment now under review recites that it is in part based upon the report of the Welfare Department of Bibb County, and consequently we must reverse it and repeat our previous ruling that it is reversible error to consider such matter. It might be easier and cheaper for the litigant to introduce such records rather than produce as a witness in court the person or persons who made the investigation and have them testify and submit to cross-examination; but the other party in the case has rights that can not be protected fully if he is denied the privilege of crossexamination. We know that men's rights and liberties are jeopardized when courts abandon the tried and proven court procedure of admitting only relevant evidence and producing witnesses who are subject to crossexamination. And, while some jurisdictions appear to adopt the bureau-commission investigation farce of trials where such essentials to justice are denied, Georgia courts have not done so and will not thus assault liberty."
In closing, I might mention that I have proceeded on the assumption that the report of the county welfare worker would be apt to consist of diagnoses, opinions or observations of the worker which could be affected by his knowledge, memory, judgment, etc., and hence would not be admissible under Georgia Code Ann. 38-711 as records made in the regular course of business. See Martin v. Baldwin, 215 Ga. 293, 301 (1959); Meeks v. Lunsford, 106 Ga. App. 154 (1962).
August 18, 1964
HEALTH PROFESSION LOAN FUND
This is in reply to your letter in which you inquired as to the ability of persons under 21 to sign binding obligations in Georgia, particularly in reference to the Health Profession Loan Fund.
It is my understanding that this loan fund has been set up jointly by the State and Federal governments for educational purposes, and that obligations incurred on loans thereunder are to the Medical College of Georgia. As a general rule in Georgia, contracts to which a minor is a party are voidable by him. (Georgia Code Ann. 20201) However, there are various exceptions to this general rule, one of which is as follows:
"Loan of educational trust fund to minors-Any contract, promissory note, written obligation or other evidence of indebtedness made and executed by a minor for a loan from any trust fund for educational purposes to any educational institution shall be as valid and binding as if said minor were at

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the time of making such contract or other obligation sui juris and otherwise capacitated to contract." (Georgia Code Ann. 20-205)
On the basis of your description of the Health Profession Loan Fund, it is my unofficial opinion that an obligation signed by a minor for a loan thereunder would be within the purview of the above code section and would, therefore, be binding on him.
August 19, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
We are pleased to acknowledge receipt of your request for an official opinion as to whether or not under Georgia Code Ann. 88-117 (Act No. 936, Georgia Laws 1964, p. 499) the Rules and Regulations of the State Board of Health effective on June 30, 1964 are still in effect and will continue in effect until such time as they are amended.
Section 88-117 of the Georgia Code Annotated provides the following:
"88-117. State Board of Health, rules and regulations in effect prior to enactment of this Title. Nothing in this Title shall be construed as abrogating the rules and regulations issued by the Board of Health in Force immediately prior to the enactment of this Title, but same shall remain in force and effect until amended, altered or repealed under the authority hereby established."
It is frequently the duty of the Attorney General to defend the constitutionality of State statutes regardless of his own opinion concerning their validity, and in recognition of this fact, it has always been my policy never to pass upon questions which may deal with constitutionality 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 controvery and not assume the office of censor of the legislature or of the other agencies of government.
In light of these premises, I now turn to the issue at hand.
In 25 AM. JUR. Health 21 (1940), it is provided that health regulations are of the utmost consequence to the general welfare and well-being of the State and if they are reasonable, impartial and not against the general policy of the State they are binding on the public.
It is further provided under 2 Am. Jur. 2d. Administrative Law 289 (1962), that whatever force and effect a rule or regulation has is derived entirely from the statute under which it is enacted and a regulation in conflict with the statute is without force and effect.
In the case of State v. Friedkin, 244 Ala. 494, 14 So. 2d 363 (1943), it was held that the fact that rules and regulations were adopted

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prior to the effective date of a statute does not prevent them from going into effect contemporaneously with the Act.
In the case of United States v. Hawthorne, 31 F. Supp. 827 (N.D. Tex., 1940), the court held that a regulation of an executive department dies with the repeal of the statute from which it gains life. However, in the question at bar, a clear distinction can be made from that case, as the Georgia Legislature has specifically adopted a saving clause, to wit, 88-117 of the Georgia Code Annotated.
A general rule governing the construction of statutes in this State is that in all interpretations, the courts will look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy. (See, Georgia Code Ann. 102-102, subsection [g] .) Public history and all facts and circumstances connected with the public affairs of the State should be considered (City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 704 (1899).
Therefore, in light these principles, it is my opinion that Act No. 936, Georgia Laws 1964, page 499, which is codified unofficially as 88-117 of the Georgia Code Annotated, will continue in effect the rules and regulations issued by the Board of Health prior to the enactment of the New Health Code until the same are amended, altered or repealed under the authority established by the New Health Code.
August 21, 1964
OPINION TO THE GAME AND FISH COMMISSION
You have requested our opinion on whether there are any legal objections to an agreement between the Department of State Parks and the State Game and Fish Commission pursuant to which the Game and Fish Commission would utilize waters located on State Park property for the stocking and breeding of fish, with the right to fertilize such waters and perform other functions incidental thereto.
Article VII, Section VI, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-5901) empowers departments and agencies of the State to contract with each other.
The Department of State Parks is specifically empowered and directed pursuant to 43-124 (e) of the Georgia Code Annotated, to co-operate with other State agencies in matters relating to developing, improving, etc., the various parks under its jurisdiction, including the development and improvement of recreational facilities.
Pursuant to Georgia Code Ann. 45-114, the State Game and Fish Commission is authorized and directed, inter alia, to acquire by agreement waters suitable for fishing areas and to perform the functions necessary to make those areas suitable for fishing.

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In the light of the foregoing it would appear that if in the judgment of the Director of the Department of State Parks and the Director of the State Game and Fish Commission, the purposes for which State Parks are operated, the development and proper management of fishing areas in the State and, in short, the public interest, would best be served by the assumption of functions enumerated above by the Game and Fish Commission, there is no fundamental legal impediment to such an arrangement. The matter could be handled by an exchange of letters between the two directors setting forth the specific areas covered by the proposal and the exact services to be performed by the Game and Fish Commission. In the alternative, of course, a written agreement between the two agencies could be prepared covering the entire understanding, and we will, of course, be happy to assist .you in the preparation of any such agreement if you so desire.
August 21, 1964
OPINION TO THE STATE BOARD OF PHARMACY
I have your letter wherein you request an official ruling of the Attorney General as to the legality of dispensing drugs in hospitals through the use of machines, specifically, a system of machine dispensers known and denominated as The Brewer System.
To better understand the problem, it would perhaps be helpful to outline briefly the system of dispensing drugs in hospitals through the use of this machine. As I understand it, the basic procedure is as follows:
A registered pharmacist takes from the hospital pharmacy or drug room a limited number of pills and/or capsules and places the same in individual boxes that are then placed in the machine which is located at the nurses' station. Each machine can hold or accommodate approximately ninety-six different drugs which are most commonly used at that drug station. It is assumed that a hospital having a number of machines, throughout the hospital, could accommodate practically all of the types of drugs used in the hospital. The particular doctor or attending physician writes out a prescription or order for his particular patient, and the nurse in charge of the machine proceeds to the machine and by a system of keylocks, name plates and identifying metal bars takes from the machine the drug for which the doctor has issued a prescription or order. The machine prints the patient's name and other information; the label printed by the machine is then placed upon the box or container by the nurse. The nurse places the box of medicine which she has obtained from the machine in the drug cart, which is a mobile unit rolled about the hospital to or near the patient's room. I think that this is a fair statement of the actual process by which drugs or medicine are first placed in the machine by a registered pharmacist and ultimately reach the patient for dosage.

556
Section 84-1301 (a) of the Georgia Code Ann. provides as follows:
"Drugs, medicines, chemicals or poisons shall be dispensed, compounded or sold at retail only under the direction and direct supervision of a licensed and registered pharmacist of the State of Georgia."
Section 84-1317 of the Georgia Code Ann. provides, in part:
"No person shall engage in the compounding or vending of medicines, drugs, or poisons without full compliance with this Chapter. . . ."
Section 42-811 (2) provides that
"Whenever an apothecary sells or dispenses any narcotic drugs on a prescription issued by a physician, dentist, or veterinarian, he shall affix to the container in which such drug is sold or dispensed, a label showing his own name, address, and registry number, or the name, address, and registry number of the apothecary for whom he is lawfully acting: the name and address of the patient, or, if the patient is an animal, the name and address of the owner of the animal and the species of the animal; the name, address, and registry number of the physician, dentist, or veterinarian, by whom the prescription was written: and such direction as may be stated on the prescription. No person shall alter, deface, o:r remove any label so affixed."
Also, pursuant to the power and authority given to the State Board of Pharmacy to make rules and regulations, the following rule and regulation has been adopted by the Board and is now in full force and effect:
"Pursuant to the authority contained in Section 84-1309 of the Georgia Code, the following rule and regulation of the Georgia Board of Pharmacy is hereby enacted, adopted and established and promulgated which said rule and regulation shall apply to and be binding upon all persons licensed by the Georgia Board of Pharmacy under Title 84-13 of the Georgia Code, any licensee under Title 42-8 of the Georgia Code and any person, firm, corporation or co-partnership registered under Title 42-16 of the Georgia Code:
"It shall be unlawful for any proprietor, owner or manager of any drug store or pharmacy to allow any person in his employ except a registered pharmacist to compound, mix, dispense, or fill any prescription for any drugs, medicines, or poisons for sale, except an employee under the immediate supervision of a registered pharmacist. No drugs, medicines or poisons intended for human consumption or use on human beings shall be compounded, mixed, dispensed, or prescriptions filled therefor except by a registered pharmacist, or an employee or person under the immediate supervision of a registered pharmacist.

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"Whenever it shall appear to the satisfaction of the Georgia Board of Pharmacy that any one of the above described persons, licensees, firms, corporations, or co-partnerships has violated or contravened the foregoing rule and regulation, the said Georgia Board of Pharmacy may revoke or suspend any license or registration issued by said Board; the said revocation or suspension to be heard, considered, made and ordered pursuant to the provisions of Section 84-1316 of the Georgia Code."
I am of the opinion that the use of the machine as briefly outlined above is in controvertion of the statutes of Georgia quoted above and also is in violation of the entire spirit and intent of the Pharmacy Laws of Georgia. It would seem that in a great many, if not all, instances the registered pharmacist on duty at a hospital would not see or handle the prescription or order written by the doctor; but, to the contrary, a nurse would be the one to get the prescription or order, interpret it, and procure the drug or medicine, unlabeled (except as to nomenclature of the drug) from the machine. Then that nurse or someone else would administer the drug or medicine, thereby entirety bypassing the registered pharmacist. In the State of Georgia, a registered pharmacist in order to be licensed must now attend an accredited college for two years, a recognized and accredited pharmacy school for three years and work for one year in actual pharmacy work. It is generally considered one of the great safeguards in the dispensing and administering of drugs and medicine that the pharmacist know and be fully cognizant of the usual dosages of drugs or medicine and the outer limits thereof, so that the pharmacist may call to a doctor's attention any error or inadvertence in the prescription or order which might, in any way, give a patient an overdose or otherwise be deleterious to the patient's Health. It can thus be easily seen that the training and experience of a pharmacist in this regard is completely obviated by use of the machine in question.
I am not unmindful of the argument that hospitals in other states that are now using the machines in questions are pleased with the overall results of their use for the reason that use of the machines does away with a great deal of accounting for drugs and paper work, speeds the flow of drugs from the pharmacy to the patient, and frees the nurses from a great deal of clerical drudgery so that they may devote more time to the care of the patients. However, the question of the merits or demerits of the use of such machines in Georgia is not a question for me to determine, as I have heretofore reached the conclusion that the use of the machines as I understand such use, is a violation of the Pharmacy Laws of Georgia. In considering fully the use of the machines in question, I am irresistibly forced to the conclusion that the overall effect would be to permit nurses to dispense drugs in contravention of the Georgia Pharmacy Laws. In fact, at a conference with the Georgia State Board of Pharmacy, a representa-
tive of the Brewer System admitted that there is no substantial difference between a nurse's obtaining a drug from a large container in a pharmacy room of the hospital and her obtaining a drug from a small
container in the machine.

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It has been suggested that the use of the machines is a violation of Georgia Code Ann. 84-9961 which states:
"Any person, firm or corporation, or combination thereof, who shall sell or dispense drugs by the use of vending machines shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished as provided by law."
In Webster'Si New International Dictionary, 2nd Edition, a vending machine is defined as "a slot machine for vending merchandise." See also State v. Fairbanks,, 65 S.D. 272, 273 N.W. 188 (1937) and American. Mete'r Co. v. McCaughn, 1 F. Supp. 753 (E.D. Pa., 1932).
I am of the opinion that 84-9961 encompasses and prohibits only machines for the dispensing of drugs which are commonly, regarded as vending or slot machines whereby the immediate prospective user of the drugs obtains the drugs directly from the machine by the insertion of coins into the machine. Therefore, the use of machines such as you have inquired about would not violate the vending machine statute; but as I have stated above, the use of the machine to dispense drugs contravenes the above cited pharmacy laws and rules and regulations pursuant thereto, and would be illegal in Georgia.
August 24, 1964
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
We are in receipt of your inquiry concerning the legality of the purchase by the Department of Industry and Trade of a limited supply of specially-designed cuff-links and key-rings for controlled distribution by your Department to representatives of industries which you are attempting to encourage to locate or expand operations in Georgia.
The cuff-links and the decorative attachment to the key-rings are designed in the shape of the State of Georgia and bear on each the inscription: "Georgia, The State Rich In Heritage, Young In Ideas, Boundless In Industrial Opportunities, Carl E. Sanders, Governor." On the other side of the attachment to the key-rings is imprinted the official emblem of the Department of Industry and Trade as well as the Great Seal of Georgia.
The distribution of the cuff-links and key-rings would be confined to industrial prospects which you are attempting to convince of Georgia's industrial potential. These decorative items would serve as continuing reminders to their wearers and users of the various other promotional and advertising efforts that had been made to induce them to bring their industries to Georgia.
The Department of Industry and Trade is, more than any other department or body, the promotional agency of the State. Indeed, promotion and attraction of new and expanded industry, development of tourism, and encouragement of the over-all business and industrial improvement of Georgia are the very reasons for its existence.

559
The Department is a constitutional department of the State, having been created pursuant to Article V, Section X of the Constitution of the State of Georgia of 1945, as amended (Georgia Code Ann. 23305). In legislation implementing the creation of the Department and the Board of Commissioners of Industry and Trade, the Board's powers and duties are described in part as follows:
" (c) To promote and encourage the location, establishment, and development of new businesses and industries within the State, and the development and expansion of businesses and industries now or hereafter located in the State."
* * * *
"(h) To plan and conduct a program of information and publicity designed to attract tourists, visitors and other interested persons from outside the State to this State ...." (Georgia Code Ann. 40-2017)
From the foregoing, it is apparent that the Department is not only empowered but directed to "promote," "encourage" and to conduct a program of publicity with respect to attracting new industries into the State.
Industrial promotion is a highly competitive enterprise in which Georgia is pitted against forty-nine sister states in a continuing aggressive campaign to attract new and expanded industry. In order to carry out the purposes for which it was created, the Department must, within the limits of the law and its budget, be allowed as much latitude as possible in engaging successfully in that keen competition.
Not only must an industrial prospect be interested initially through advertising or personal contact by representatives of the Department, not only must he then be conducted on tours of the State, supplied with myriad information, and otherwise encouraged to think favorably upon Georgia as the State in which he would like to locate his industry, but he must be continually reminded of what he has learned until the final moment of his decision.
In the light of the foregoing, we may now appropriately examine whether it is an appropriate function of the Department of Industry and Trade, to engage on a limited basis, in the presentation of "mementos" of a promotional campaign by presenting to industrial prospects cuff-links or key-rings made in the shape of the State of Georgia and bearing inscriptions thereon designed to show Georgia as an area of great industrial potential.
This office has previously issued rulings from time to time concerning whether a department may distribute gratuitously an item of some intrinsic value which also has an educational or other type message imprinted upon it. A summary of those opinions is set forth in Ops. Att'y Gen. 36 (1962).
In 'that opinion, after citing the Constitutional prohibition against granting gratuities (Art. VII, Section I, Paragraph II; Georgia Code Ann. 2-5402), we stated, at page 38:

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"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 AM. JUR. 756, 57."
Certainly the welfare of the State as a whole is promoted by the non-discriminatory development of the industrial potential of the State through the promotional efforts of the Department of Industry and Trade. Thus, the test of whether those promotional efforts in general are appropriate or not is successfully met.
In the same opinion cited above, I held that mirrors on which a fire safety message and the name of the insurance commissioner were imprinted would, if distributed, constitute gratuities prescribed by law. In so holding, I stated, at page 38:
"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 ... whose principal utility is in its use as a mirror and not in the idea it also seeks to convey."
On the other hand, I reaffirmed at the same time my approval of certain other tangibles items which had been purchased with educational messages upon them on the ground that they were undertakings "in which whatever elements of a 'gift' were involved emerged as an incident of the dominant function which was educational."
The cuff-links and key-rings with which we are here concerned are unique. Their very shape is that of the State of Georgia, and their message is a reminder of the industrial opportunities available in our state. The wearer or user cannot wear or use them without automatically having Georgia brought to his attention, and since he will have received them as a result of being encouraged to locate his industry in Georgia, the various other aspects of the promotional program to which he has been exposed should in turn automatically be brought to mind.
As mementos, the cuff-links and key-rings are a continuing reminder of a program of which they are an integral part, a promotional and publicity program for Georgia. They are an effective advertisement of Georgia.
On the other hand, the intrinsic value of the cuff-links is slight, and that of the key-ring even less. Considering the persons to whom they are given they represent an extremely small portion of the total expense and effort being put forth to advertise, promote and further the industrial development of the State.
In the light of the foregoing, it is my opinion that the elements of "gift" or "gratuity" involved in the cuff-links and key-rings in question are merely incidental to their dominant function of advertising

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and promotion. As such, and for the uses described, they may appropriately be purchased and distributed by the Department of Industry and Trade.
It should here be re-emphasized that the "line of demarcation between legal and illegal expenditures is often difficult to discern." Thus, proposed purchases and distribution at other times of other items which might involve the element of gift should be individually considered on their merits.
August 24, 1964
OPINION TO THE STATE BOARD OF PHARMACY
I have your letter requesting my official opinion on the following question: "Under the 1962 Drug Permit Act, if a drug store owner or operator fails to renew his permit by August 31, as stated in the Act, will such drug store owner or operator be required to file a new application and to pay the $25.00 fee required for an original application?"
Section 42-1602 of the Georgia Code Ann. provides as follows:
"The Board of Pharmacy shall require and provide for the annual registration of every pharmacy or drug store, as defined, doing business in this State. Any person, firm, corporation or co-partnersip desiring to operate, maintain, open or establish a pharmacy or drug store, as defined, in this State, shall apply to the Board of Pharmacy for a permit to do so. The application for such permit shall be made on a form prescribed and furnished by the Board of Pharmacy, which when properly executed, shall indicate the owner, manager, trustee, lessee, receiver, or other person or persons desiring such permit, as well as the location of such pharmacy or drug store, including street and number, and such other information as the Board of Pharmacy may require. If it is desired to operate, maintain, open or establish more than one pharmacy or drug store, separate applications shall be made and separate permits shall be issued for each. Every application for a permit shall be accompanied by the required fee of $25.00 for a new permit, and the amount of $15.00 shall be paid annually thereafter for renewal of such permit. If an application is found satisfactory, the secretary of the Board of Pharmacy shall issue to the applicant a permit for each pharmacy or drug store for which application is made. Permits issued under this section shall not be transferable and shall expire on the thirtieth day of June of each calendar year, and if application for renewal of permit is not made or a new one granted on or before the first day of September, following, the old permit shall lapse and become null and void. Every such place of business so registered shall be in direct charge of a registered pharmacist and operate in compliance with the general provisions governing the practice

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of the profession of pharmacy and the operation of a drug store or pharmacy."
It is my opinion that the above quoted section of the Georgia Code Annotated provides that each drug store heretofore issued a permit under the Act shall apply for a renewal of permit on or before the 30th day of June of each succeeding calendar year and pay a renewal fee of $15.00; provided, however, that if an application for a renewal together with the remittance of $15.00 is not made on or before the 1st day of September of each calendar year, the existing permit shall lapse and become null and void. It therefore follows as a sound legal proposition that if the existing permit lapses and becomes null and void, 'the legal effect is that the old permit cannot be, in any manner, renewed or revived.
Accordingly, it is my opinion that on and after the 1st day of September of each calendar year, any heretofore existing permit which has not been renewed by that date is absolutely null and void, and that it cannot be renewed or revived, in any manner. Any owner or operator of a pharmacy or drug store, as defined, who wishes to continue such operation will thereafter be required to make application for a new permit and pay the required fee of $25.00.

August 25, 1964

OPINION TO THE MERIT SYSTEM OF PERSONNEL ADMINISTRATION

I wish to acknowledge receipt of your letter requesting my official

opinion concerning the hearing of an appeal, by the State Personnel

Board, of Mrs. --on her dismissal by the Fulton County Department

of Family and Children Services. I acknowledge also with your letter

of request a copy of the letter of dismissal from Mr. Welborn Ellis,

County Administrator, to Mrs.--, notifying her of her dismissal,

and the motion to set aside the dismissal which has been filed by

Mrs. - - with the State Personnel Board.

'

You ask the following specific questions:

"(a) In view of the letter of dismissal from Mr. Welborn R. Ellis, County Administrator, to Mrs. --, and the motion to dismiss charges and to set aside the dismissal filed by the attorney for the applicant, can the Board proceed to hear the
.appeal to completion?

"(b) Can Mr. Ellis amend his letter of dismissal to document more fully the causes of dismissal now that the hearing
has commenced?"

To answer your first question involves a consideration of the legal sufficiency of the notice of dismissal of Mrs. --in the light of the decision of the Georgia Court of Appeals in the case of Scott v. Undercofler, 108 Ga. App. 460 (1963).

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In the decision of the Court of Appeals, Judge Hall, in construing the legal sufficiency of a notice of dismissal to one Olon E. Scott, pointed out that Rule 12.401 of the Rules and Regulations of the State Personnel Board provides as follows:
" 'The Appointing Authority, upon notice in writing to an employee stating specific reasons therefor, may dismiss any emp,loyee for cause as herein defined. The Appointing Authority shall send a copy of the notice to the Director. For the purpose of these rules, 'cause' for dismissal shall be (1) negligence or (2) inefficiency in performing the duties of the position held, 3) unfitness to perform assigned duties, (4) insubordination, (5) misconduct reflecting discredit on the Department, or (6) political activity in violation of Section 3.100.'" (Emphasis added)
The Court then states, at 108 Ga. App. 462:
"Some courts have gone so far as to hold when the law required that the employee be furnished with specific reasons for discharge, that the notice should state the times, dates, and places of the incidents or conduct giving cause for the employee's discharge. Mays v. Louisiana Wild Life & Fisheries Commission, supra; Deak v. Pace, supra.
"The issue of the particularity required in a notice of charges against an employee protected by the Georgia Merit System Law has not been directly determined by our appellate courts. We recognized in Jones v. Mayor of Athens, 105 Ga. App. 86, 92, (123 SE2d 420), where the applicable statute required that the city employee to be discharged be 'presented with reasons for such ... discharge specifically stated in writing' and 'given an opportunity to be heard in his own defense,' that the notice must be 'such that the employee would have sufficient knowledge or reason to know the basis on which his removal is sought,' or that the charges must be in terms sufficiently explicit to. enable the emp,loyee to make an. exp,lanation. Under the Federal law, 'Charges preferred for removal [of Federal employee from the classified civil service] must be specific enough to provide a fair opportunity for refutation by the innocent who have no knowledge of the conduct charged, as well as the guilty who do possess such knowledge.' .. .'' (Emphasis Added)
On page 463 the Court further states:
"We believe that the Georgia Merit System Law (Georgia Code Ann. 40-2201 et seq., Georgia Code Ann. 40-2239) was enacted with the same purpose as other civil service legislation in this country, and that to accomplish that purpose the letter of the law respecting notice of discharge must be followed. Under the Georgia statute (Georgia Code Ann. 402207) the rules and regulations of the State Personnel Board (Merit System Council) have the force and effect of law. Under these regulations, 'notice in writing to an employee

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stating specific reasons' for discharge is a sine qua non of a valid discharge. The letter to Mr. Scott stated that he was being dismissed because of inexcusable 'attitude and demeanors with the public' and disregard of the advice of superiors that his 'attitude toward the public be modified,' and because his 'unpleasant relations with the taxpayer continue to be reported to the Commissioner.' These reasons were not specific.
"Provisions of law re,quiring that a discharged employee be furnished with reasons for removal are mandatory, and a notice that does not comp,Jy with such provisions is void and all proceedings, thereafter are a nullity. Owens v. Ackerman (Ohio), 136 NE2d 93, 97; State ex rei DeWald v. Matio, 125 Ohio 487, supra. The defect in the notice given to Mr. Scott was fatal to his discharge...." (Emphasis added)
It is the responsibility of the State Personnel Board to determine whether any notice of dismissal of a State employee under the State Merit System meets the standards and requirements of the degree of particularity required in such notice as set forth in the Scott decision.
Webster's Dictionary defines the word "specific" as
"Precisely formulated or restricted; specifying; explicit; as, a specific statement.... "
Webster's Dictionary defines the word "specify" as
"To name or state explicitly or in detail. ... "
Webster's Dictionary defines the word "explicit" as follows:
"Explicit, express, specific, definite means perfectly clear in meaning or reference, as an utterance. Explicit implies such plainness and distinctness that there is no reason for difficulty; ... specific implies precision in reference or particularization in statement of the details covered or comprehended... .''
It is not, therefore, legally sufficient merely to state one of the six causes for dismissal. It is necessary to give specific designated particulars as being the basis for one of the causes.
It is not my construction of Judge Hall's decision in the Scott case that all minute evidence substantiating specific reasons for cause of dismissal must be set forth in detail in the notice of dismissal. It is my opinion that the notice is sufficient to meet the criteria and standards as set out by Judge Hall, if the notice gives specific particulars and reasons for discharge so that the employee would have sufficient knowledge or reason to know the basis on which the removal is sought.
If the State Personnel Board, in considering the notice of dismissal given to Mrs. --, determines that said notice states specific reasons and specific particulars for the cause of general inefficiency in according with the criteria set out above, so that such employee would have sufficient knowledge or reason to know the basis on which her removal was sought, then the Board can proceed to hear the appeal to completion.

565
If the State Personnel Board finds that the notice of dismissal given to Mrs. - - does not meet these requirements with respect to specificity and particularity, then the Board cannot proceed to hear the appeal to completion, since under the Scott case the notice of dismissal is null and void.
In answer to your second question, it is my opinion that the letter of dismissal to Mrs. --may not be amended to document more fully the causes of dismissal. If the State Personnel Board should determine that the notice does not comply with law in stating specific reasons, then such a notice under the Court of Appeals decision would be void and all proceedings thereafter would be a nullity. If the notice of dismissal is sufficient with respect to particularity, there would be no need in entertaining an amendment to cause compliance with the law as to the legal sufficiency of the notice of dismissal.
August 24, 1964
MUNICIPAL OFFICIALS
This will acknowledge receipt of your letter requesting my unofficial opinion on whether a duly elected councilman may presently tender his resignation effective December 31, 1964; announce for the office of mayor, the incumbent's term expiring on December 31, 1964; and if elected, take office on January 1, 1965.
As stated in your letter, the controlling statute is found in Georgia Laws 1957, pp. 97, 98 (Georgia Code Ann. 69-201).
"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 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." (Emphasis added)
Although the last sentence of the statute conveys the definite impression that the officer must resign before entering another race, I believe the controlling requirement of the statute is that an individual may not "hold" more than one municipal office. Under this interpretation, an individual is not in violation of the statute until he attempts to occupy both positions, and, under the facts as you have stated them, this is a physical impossibility in that the resignation has been submitted and accepted effective December 31, 1964.
Substantiation for my position is found in Casey v. McElreath, 117 Ga. 35 (1933), at 36:
"Where, however, it is the holding of two offices at the same time which is forbidden by the constitution or the sta-

566
tutes, 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.' And from 23 Am. & Eng. Enc. Law, 427, the following is quoted: 'It is an unquestioned rule that an officer vacates his office by the acceptance of another place in the public service, the functions and duties of which are incompatible with those incident to the office first held; and this even though the second office is of an inferior grade.' "
Even if we give full weight to the last sentence of the statute which appears to require that the official must resign his present position before running for a second office, the facts seem to conform with the requirement. The councilman has irrevocably resigned his present position, which resignation has been accepted and which becomes effective December 31, 1964. To my mind, this is a valid "resignation". An apt analogy can be seen in the instance of a councilman whose term of office expires in November of 1964 and who wishes to run for an office which will be effective January 1, 1965. Surely, such a person would not be required to resign from an office which cannot possibly conflict with the duties of any new office be may acquire by election. In the present case, the termination of the councilman's office is as certain as if his term were expiring on the effective date of his resignation.
Therefore, I am of the opinion that an officer whose present position will be finally terminated prior to the beginning date of any new office he may gain by election, is eligible to seek and hold such second office.
August 26, 1964
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
This letter is in reference to the possible appointment of Dr. - by the University System of Georgia, to the staff of Augusta College. After a review of the relevant facts furnished and the law involved, plus a discussion of the case with Dr.--'s attorney, it is my opinion that there is no legal prohibition against the appointment of Dr.-to such position.
The facts relevant to this inquiry show that Dr. - - entered a plea of nolo contendere to the charge against him, which plea was accepted by the Government attorneys and the Judge. Imposition of a sentence was suspended, and Dr. - - is now under consideration for an appointment to a position with Augusta College. A brief history of the case drawn up by Dr.--'s attorney is enclosed.
The Constitution of the State of Georgia, Article II, Section II, Paragraph I (Georgia Code Ann. 2-801) provides:

567
"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 or competent jurisdiction 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."
In addition, Georgia Code Ann. 89-101 states:
"Persons ineligible; de facto officer. - 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 sufficient reason for vacating any office held by such person...
3. Persons convicted of felony.-Any person convicted and sentenced finally for a 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 pardon from proper executive, under the great seal of the State, to all the rights of citizenship."
In view of the above provisions, the question arises whether Dr. --may be eligible to fill the position under consideration here.
Under Georgia law, the plea of nolo contendere may not be used as a grounds for any civil disability.
"Plea of nolo contenders: subsequent use, against defendant. - Such plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt, or otherwise, or for any purpose, and such plea shall not be deemed plea of guilty for purpose of effecting any civil disqualification of the defendant to hold public office, to vote, to serve upon any jury or any other civil disqualification now imposed upon a person convicted of any offense under the laws of the State, and said plea shall be deemed and held to be in jeopardy of the defendant within the meaning of Article I, Section I, Paragraph VIII of the Constitution of the State of Georgia [ 2-108] after sentencing has been imposed." (Georgia Code Ann. 27-1410).
In Wright v. State, 75 Ga. App. 764 (1), 44 S.E.2d 569 (1947), involving the plea of nolo contendere to a charge of receiving stolen property, the Court discussed at length the legislative intent in providing for a plea of nolo contendere in the light of the evil it was enacted to remedy. After noting the civil disabilities which formerly resulted from conviction of a crime, the Court said:
"The General Assembly, no doubt, had in mind that those penalties, in addition to the punishment provided for by law as to the respective offenses charged, would often be too drastic in specific instances; that ofttimes the degree of wrong surrounding the circumstances of one defendant would be so much less than that surrounding another, and yet the facts be such that no valid defense to the crime could be interposed. Also the General Assembly doubtless regarded a plea of guilty as too

568
harsh, as applied to a person of good moral character and standing in his community, he being technically guilty of a crime, without a valid defense, and such plea often being admissible against him in other court proceedings."
In Nelson. v. State 87 App. 644, 75 S.E.2d 39 (1953), the defendant intered plea of nolo contendere to charge of driving while under the influence of intoxicating liquor. It was held on appeal that since such plea was allowed by the court, it was without power and authority in revoking the defendant's driver's license for 60 days based on the plea of nolo contendere.
In view of the Georgia statutes and case law to the effect that a plea of nolo contendere may not be raised in another proceeding as a basis for any civil disqualification, it is my conclusion that the Board of Regents of the University System of Georgia, is not legally prohibited from appointing Dr. - - to a teaching position at Au-gusta College.
August 27, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask:
"1. May the Chairman of a County Board of Education vote on an issue before the Board, even though such vote is not to make or break a tie on some issue?"
"2. May the Chairman make a motion on some issue?"
"3. May the Chairman second a motion on some issue?"
It appears from your letter that the three questions stem from an official opinion of this office dated October 21, 1957, which, after citing Robert's, Rule's of Order as to parliamentary procedure, concluded.
"The Chairman of a County Board of Education may vote to make or break a tie on some issue before the board." See Ops. Att'y Gen.. 104 (1957).
Although not expressly so stated in your letter, I presume that your inquiry is concerned primarily with the substantive legal question of whether or not the actions of the board chairman referred to in your questions might affect the validity of a resolution or other action of the board, rather than with a mere academic delving into the niceties of parliamentary procedure. Based upon this assumption, it is my opinion that the validity of an action of a county school board is not dependent upon strict adherence to the rules of parliamentary procedure, or in general to any other formal procedural rules not prescribed by statute. For this reason I believe that the chairman of a county board of education may vote upon an issue before the board (whether or not his vote is needed to make or break a tie) and may

569
make or second motions as to such issues without vitiating an otherwise valid board action. To the extent that prior opinions of this office might be taken as implying that a chairman can not legally cast such a vote where it neither makes nor breaks a tie (See, e.g. Ops. Att'y Gen. 104 (1957) ; Ops. Att'y Gen. 333 (1952-53) such prior opinions are hereby expressly overruled.
In the exercise of their statutory powers to administer and supervise the public schools, the county boards of education are vested with a broad discretion, Patterson v. Boyd, 211 Ga. 679, 681 (1) (1955), and the courts will not interfere with the board's action on a particular matter unless it clearly appears that the action was in violation of law or amounted to a gross abuse of the board's discretion. Pass v. Pickens, 204 Ga. 629, 634 (1949); Boney v. County Board of Education of Telfair County, 203 Ga. 152, 155 (1947).
This broad discretion is clearly applicable to the procedures and methods adopted by the board for the orderly transaction of its business, and except as to those requirements set forth by statute,! it may be generally stated that:
"The proceedings, being usually kept by those not informed in the law and being more or less informal in character, should not be given a narrow and technical construction, but the records and proceedings should be construed in such manner as to give effect to the manifest intention of the members." 78 C.J.S. Schools & School Districts 99 (1952). (Emphasis added)
It would therefore appear that the true test of procedural adequacy, where no statutory requirement is concerned, is whether the "manifest intention" of the board is capable of being determined.2 In order that their minutes may properly and adequately evidence such "manifest intention" (i.e. the "will" of the board), it has become the common practice of most, if not all, county school boards to follow at least some informal and flexible system of parliamentary procedure,
1. Inasmuch as the board can obviously speak only through written memorials of its actions it is not surprising to find a statutory requirement that all official proceedings be recorded and maintained as public records. See Georgia Code Ann. 32-907. Another code section, 32-908, sets forth certain limitations as to when the regular meetings must be held. It should be noted, however, that even with respect to these mandatory procedural matters set forth by statute, the law requires only "substantial" rather than literal compliance. Georgia Code Ann. 102-102(6).
2. While the term "manifest intention of the board" would, in the absence of any statute to the contrary, be deemed to be synonymous with the will of a majority of the board, Georgia Code Ann. 102-102(5), the Georgia School Laws expressly provide that a majority of the county school board shall constitute a quorum for the transaction of business (see Georgia Code Ann. 32-907) and hence it is the will of a majority of the quorum which ordinarily will be required. See Marshall v. Walker, 183 Ga. 44(5) (1936).

570
such as the making and seconding of motions and recording of the number of votes for and against each motion, etc. It may further be observed that in attempting to ascertain the rules of parliamentary procedure to be followed, Robert's, Rules of Order, Revised (1951) is a frequently cited authority. See, e.g. Ops. Att'y Gen. 104 (1957) ; Ops. Att'y Gen. 333 (1952-53) ; Ops. Att'y Gen. 146 (1962).
But there is not, to my knowledge, any statutory requirement that either this or any other particular system of parliamentary procedure be adhered to. To the contrary, the Supreme Court of Georgia has clearly stated that the rules of parliamentary procedure, even where "customarily employed" by a political body, may be waived or ignored at will by the body without invalidating any otherwise legal action it has taken. In the words of the court in South Georgia Power Co. v. Baumann, 169 Ga. 649, 655 (1930):
"Parliamentary rules are merely procedural, and with their observance the courts have no concern. They may be wavied or disregarded by the legislative body. While municipal governing bodies usually adopt or recognize parliamentary law as their rules of order and proceeding, courts ordinarily will not annul or invalidate an ordinance enacted in disregard of parliamentary rule, provided the enactment is made in the manner required by statute. The rules of parliamentary practice are merely procedural, and not substantive.... Mere failure to conform. to P'arliamentary usage will not invalidate the action when the requisite number of members have agreed to a particular me,asure." (Emphasis added)
See also Ellis v; Stokes, 207 Ga. 423 (2) (1950).
It would therefore seem that the only remaining question is whether the chairman of county school board is a "member" of the board whose voice and vote can be considered in determining the "manifest intention" of the county school board. On the basis of Art. VIII, Sec. V, Par. 1 of the Constitution of the State of Georgia (Georgia Code Ann. 2-6801) which provides that
"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,"
and in light of Georgia Code Ann. 32-907 which states:
"The board of education shall elect one of their number president,3 who shall serve as such during the term for which he was chosen a member of the board." (Emphasis added),
and considering judicial reference, with implied approval, to "all five of the members ... present and voting," Marshall v. Walker, 183 Ga.
3. The term board "president" would appear to be synonymous with the term "chairman" of the board. Compare Georgia Code Ann. 32-907 with Georgia Code Ann. 42-912. See also Black's Law Dictionary, (1951 Ed.), p. 290, which defines "chairman" as the name given to the "presiding officer" of a board, committee, etc.

571
44(5) (1936), I believe that it is clear that the chairman of the board is a board member whose voice and vote must be considered to the same extent as any other member of the school board in determining whether or not the will of the board has been expressed or manifested. This office, in Ops. Att'y Gen. 1962, p. 146, has already ruled to this effect.
1n closing I would also like to point out that even though I feel that the indicated participation of the chairman as to matters before the board would not vitiate an otherwise valid board action, whether or not such participation is in accord with proper parliamentary usage, it is by no means certain that such participation is not in accord with correct parliamentary procedure. In referring to the general rule which limits the chairman's vote to the making or breaking of a tie it is stated in 67 C.J.S. Parliamentary Law 5 (d) (4) (1950):
"The general rule of parliamentary bodies is that the presiding officer, unless he is1 pe,culiarly a member of the body, votes only in case of a tie." (Emphasis added)
It would seem that the underlined clause of this general rule fairly implies that where he is "peculiarly a member of the body," as in the instant case, the chairman or other presiding officer may vote on issues before the board even under "correct" parliamentary usage (recognizing, of course, that this view in C.J.S. appears to be in conflict with the rule stated by Roberts, Rules of Order, Revised (1951) p. 238, which permits the vote in cases other than a vote by ballot only where his vote would change the result-i.e. to make or break a tie). In any event I am of the opinion that any uncertainty as to the ''best" parliamentary procedure would have no legal effect upon the validity of a board action which is otherwise proper, for the reasons previously stated herein.
August 27, 1964
COUNTY PUBLIC WORK CAMPS
This will acknowledge receipt of your letter requesting my opinion on whether prisoners sentenced in the Police Court of Milledgeville for the violation of city ordinances may be placed in the county public works camp and required to labor alongside State and county prisoners on county public works.
Although the public works camps are under the jurisdiction of the State Board of Corrections, the recent regular session of the General Assembly enacted a law allowing prisoners confined under county jurisdiction to be placed in the public works camps along with State prisoners. Georgia Laws 1964, pp. 491, 492 (Georgia Code Ann. 77312). However, there is no provision for the housing and working of city prisoners.
Georgia Code Ann. 77-312 (a) provides as follows:
"(a) Subject to provisions hereinafter stated, any county may ... maintain a public works camp for the care and deten-

572
tion of all prisoners assigned to it by the State Board of Corrections..." (Emphasis added)
It is my interpretation of the statute that exceptions to the general category of prisoners set forth above must be explicitly set forth in the statute, as was done for county prisoners at the recent session of the General Assembly by the enactment of Paragraph (d) of 77-312. This would preclude the use of city prisoners in public works camps.
Therefore, I am of the opinion that prisoners serving sentences for violations of city ordinances may not be placed in county public works camps.
August 31, 1964
OPINION TO THE DEPARTMENT OF BANKING
You asked that I furnish you with an official opinion as to whether "tax equalization" loans pursuant to Article VII, Section VII, Paragraph I of the Georgia Constitution (Georgia Code Ann. 2-6001) constitute general and direct obligations of political subdivisions of the State of Georgia within the meaning of 13-2023, which limits the amount state banks may invest in certain securities.
The pertinent portions of 13-2023 provide in part:
"nor shall a bank purchase ... except such as are classed as investment securities . . . [to] be limited to ... marketable obligations ... evidencing indebtedness ... in the form of bonds, notes, and/or debentures, commonly known as investment securities, under such regulations as may be prescribed by the Superintendent of Banks.
"The purchase and ownership ... shall be subject to the following limitations . . . (b) As to general and direct obligations of the various political subdivisions of the State of Georgia, no more than 25 per cent of the capital and unimpaired surplus of a bank shall be invested in the said general and direct obligations of any one such obligor; ..."
The question is whether the "tax equalization" loans to which you make reference are such obligations as are intended by Paragraph (b) of 13-2023. The word "obligation" as used there cannot be considered as having been used precisely. The exact meaning must be arrived at upon the assumption that the Legislature intended it to mean the same thing each time it was used in the same context.
The case of Lee v. Kenan, 78 F.2d 425 (5th Cir. 1935) held that the word "obligation" as a legal term originally meant a sealed bond, but now extends to any certain promise to pay money or do a specific thing. In Lindstrom v. Spicher, 53 N.D. 195, 205 N.W. 231 (1925), the Court, in discussing the definition of "obligation," stated that every debt is an obligation, but every obligation is not a debt. Obligation is deemed the broader term; debt, the narrower. Obligation includes all

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debts; debt does not include all obligations but only that particular kind of obligation known as debt. See also to the same effect, Sonnesyn v. Akin, 12 N.D. 227, 97 N.W. 557 (1903).
The case of First Nat. Bank of Birmingham v. United States, 59 F. Supp. 49 (N.D. Ala. 1944) in ruling whether certain certificates were "obligations of a state or political subdivision," and thus interestfree under United States law, held interest received by a trustee on vendor loan certificates issued in connection with deferred payment purchase of a golf course by the City of Birmingham as a public park (the certificates providing that the vendor loan was sole security for payment), constituted interest on "obligations of a state or political subdivision."
The "tax equalization" loans were authorized by an amendment to the Constitution (Georgia Laws 1962, p. 801, ratified November 6). The amended section in referring to the loans uses the word "debt", and authorizes counties "to contract for the repayment thereof and to issue notes or other like instruments as evidence of the obligation...." Succeeding paragraphs of that particular section of the Constitution are concerned with levy of taxes and additional forms of debts. Paragraph 4 (the last paragraph of the section) begins, "in addition to the obligations hereinabove allowed, ...." The reference to obligations seems significant, indicating that the Legislature intended all forms of debt in the preceding paragraphs as obligations. Paragraph 4 itself is concerned with temporary loans which are limited and distinguished from the previously mentioned debts and obligations. The banking laws make a distinction in that the temporary loans (to which the Constitution makes reference in Paragraph 4) are specifically authorized and regulated for banks by 13-2013.
Based on the foregoing, it is my opinion that the term "general and direct obligations" as used in 13-2023 (although not intended to cover these exact loans when enacted, as these loans were not then authorized by the Constitution) is sufficiently broad to cover this class of loans, and should be thus construed as including loans secured by counties for tax equalization purposes. Therefore, such notes or other evidences of such indebtedness as might be issued by the county to the original lender (or to subsequent transferees of such lender) should be considered as "general and direct obligations" as used in Paragraph (b) of 13-2023, and are to be regulated as investment securities in conformity with the provisions of 13-2023.
September 4, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
Since the ruling of the Supreme Court of the United States in June, 1963, that a Pennsylvania statute requiring Bible readings in the public schools of that State violated the First Amendment of the United States Constitution, this office has received a continuous stream of requests for rulings and opinions relating to this complex

574
and controversial matter of religion in the public schools. The thrust of such requests seems generally to be one of determining the extent to which subject matter relating to religion may be taught or even referred to in the public schools. To illustrate, one recent request from a school principal asks whether it would be legal for a course in "Bible History" to be taught in the public schools by a Minister of the Gospel.
The purpose of this opinion is to attempt to clarify the dividing line between religious exercises and indoctrination which under the Supreme Court's ruling appear to be unconstitutional, and the teaching "about" religion [as distinguished from the teaching "of" religion] which the Supreme Court has itself indicated to be perfectly proper under the Constitution.
Although the ruling of the Supreme Court of the United States in School District of Abington Township v. Schempp,, 374 U.S. 203 (1963), would clearly seem to prohibit the holding of organized religious exercises in the public schools and would also appear to bar the presentation of any "Bible Study" or other religious course which might reasonably be interpreted by the courts as having the furtherance of any particular religion (including Christianity in general) as its "primary" purpose, the majority opinion in the Schempp case expressly recognizes that a complete education indeed requires some knowledge "about" religion. It is, therefore, my opinion that the public schools could, if they so desire, offer secular courses in comparative religion or religious history without being in violation of the United States Constitution. Nor would it be improper, where such a course is one which is secular in nature and objectively presented (i.e., not limited to a study of Christianity nor presented in a manner favoring Christianity over non-Christian religions), to read, study and discuss the Bible in connection with the course of study.
In the Schempp', case, supn, the United States Supreme Court held that a Pennsylvania statute requiring the Bible to be read without comment in the public schools of that State was violative of the First Amendment of the United States Constitution, even though the statute in question further provided that a child would be excused upon written consent of his parents. In commenting upon this decision in an official opinion dated September 18, 1963, that although I disagreed with the Supreme Court's ruling, I was forced to conclude that inasmuch as the Pennsylvania Bible-reading statute was legally indistinguishable from that set forth in 32-705 of the Georgia Code Annotated, our Georgia provision requiring Bible reading without comment would almost certainly be declared unconstitutional if attacked in the courts.
In more recent unofficial opinions, however, I have attempted to point out that while the Schempp rationale would seem to bar any religious "exercises" or courses directed primarily toward the propagation of religion in the public schools, it does not prohibit the teaching of general secular courses on comparative religion or such history courses as "religion and western man." In an unofficial opinion dated March 27, 1964, for example, I stated:
"It should be apparent to any rational person that to prohibit any reference to religion at all or even to fail to teach

575
about the beliefs of the major religions in the public schools is tantamount to the denial of even a rudimentary education in the fields of history, sociology, philosophy, political science, literature, if not all of those subjects generically described as 'the humanities.' While the mere reading of the Bible without comment would seem to violate the Constitution under the Schempp decision, it is therefore entirely possible that in a formal class such as 'Religion and Western Man,' periodic Bible reading with considerable comment as to its significance in shaping western thought, politics, philosophy, etcetera, when given as a part of the overall instruction about the differing western religions, would seem to be entirely proper."
The above extract from my prior unoffiCial opinion is based upon the express language of the Supreme Court in the Schempp case itself. Speaking for a majority of the Court, Justice Clark, after first observing the obvious fact that "the history of man is inseparable from the history of religion" [see Schempp, 374 U.S. at p. 212] accurately states at p. 225 of the reported decision:
"it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented obje'Ctively as a P'art of a secular program of education, may not be effected consistently with the First Amendment.'' (Emphasis added)
u.s.A3c0o0n: curring opinion of Justice Brennan notes similarly at 374
"The holding of the Court today plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history.''
The above frequently overlooked qualifications which the Supreme Court itself attached to its Schempp decision are in reality nothing more than common sense limitations upon the scope of the ruling; such limitations are absolutely necessary if a child is not to be kept ignorant of many of the most basic aspects of his social environment and civilization. In the context of history, for example, a student cannot fully understand the exploration and colonization of America without knowing something of the religious controversies engendered by the Reformation in Europe. To understand the Reformation it is necessary that one be familiar with the Renaissance, and the Renaissance was caused in part, of course, by the Crusades. To attempt to separate these basic historic movements of western civilization from religion would, without, a doubt, make western history unintelligible. This necessity of obtaining at least some knowledge about religion is also true respecting a legal education. No school of legal philosophy has been more influential in the shaping of minds of students of the law than the natural law school, which in large part stems from the scholastic philosophers such as St. Thomas Aquinas. Ignorance of medieval

576
theological thought therefore necessarily leads to greater difficulties in understanding one of the more vital schools of legal philosophy today. Similarly, the significance of religion in politics is so obvious as to scarcely require comment. And, as already mentioned, the same is probably true with respect to all of the humanities.
Hence, there would seem to be little doubt but that while the line between an unconstitutional teaching of religion and a constitutional teaching about religion in a secular course is a very fine line, it is a line which must exist if there is to be education in the humanities generally, and which according to the Supreme Court does exist.
While the question of whether any particular course is one which will pass muster as a valid secular course "about" religion or fail under judicial scrutiny as an unconstitutional teaching "of" religion is obviously one which will require examination of the exact subject matter taught and will be decided on a case-by-case basis, it would seem reasonable to surmise that the broader the scope of the course the greater its chances in court. To illustrate, I would think that any course limited to "Bible Study" or "Bible History" would most likely be declared by a reviewing court to have the futherance of Christianity as its primary objective and hence be violative of the First Amendment of the Federal Constitution.
On the other hand, the same Bible reading and discussion [assuming always, of course, that the presentation is sectarian and objective] would be likely to be held permissible where part of a broader course on comparative religion or a more general history course on religion. Although I am hardly so presumptuous as to attempt to place myself in the role of an educator and make a recommendation as to what ought to be taught in the public schools, I do feel that I might, solely for purposes of illustration, present in outline form one high school curriculm which, if developed, could be used to educate children about religion without violating the United States Constitution. It is to be understood, of course, that this is only one example of what could conceivably be offered in the public schools under present constitutional doctrine and is offered strictly as an idea and not as a recommendation.
The curriculum I set forth as one example of what could legally be taught in the public schools is a five-year course which might be aptly entitled "Religion and Western Man." It covers the development of religion in the western world [from a secular historical viewpoint] starting with Egypt and the Near East and proceeds to classroom discussion by high school seniors of such contemporary religious writers as Karl Barth and Niebuhr. A general outline of such a course might well be as follows:
EIGHTH GRADE
A study of the religions of ancient Egypt (a theocracy), the religions of the Near East [including the early development of Judaism (monotheism)], and the polytheistic religions of Greece, Rome and the Germanic tribes.

577
NINTH GRADE
Study of the life and teaching of Christ, the Apostles, conversion of Constantine, spread of Christianity and early Church organization, the fall of Rome and the early medieval Church.
TENTH GRADE
The Church of England, Augustine's trip to England, gradual ascendancy of Rome as the center of the Church, Byzantine Empire and separation from Rome of Orthodox Church, life of Mohammed and spread of Islam, the Crusades and their affect on Europe, the Church organization in medieval Europe, the Renaissance.
ELEVENTH GRADE
Study of the Reformation and its causes, including the Bulls, "Clericus Laicus" and "Unam Sanctum" of Boniface VIII, John Wycliff, John Russ burned for heresy, Calvin, Luther, Henry VIII, Mary and Elizabeth, the Inquisition and religious persecution in Europe, the religious wars and religious division of Europe, the role of religious turmoil in the exploration and colonization of America, Counter Reformation of Roman Church and growth of Protestant Churches (Lutherans, Episcopalians, Presbyterians, Baptists, Methodists) in Europe and in the Colonies.
TWELFTH GRADE
Religion in the Colonies, disestablishment of the Church by adoption of Constitution, First Amendment to the Constitution and its judicial development ("wall of separation" between Church and State), the significance of religion in law, literature, politics, sociology and other areas of life, modern religious trends as indicated by writings of Karl Barth and Niebuhr, ecumenical council, liturgical movements, unification, et cetera.
In a curriculum of the above described nature, it would obviously be proper, if not necessary, to refer to, read and discuss the scriptures. The history of Judaism, for example, would presumably involve study of the Old Testament while the portion of the course devoted to the life of Christ and the Apostles would merit considerable reference to the New Testament. So long as a course of this nature is presented in an objective secular manner, there would appear to be no danger of its being held unconstitutional under current decisions of the Supreme Court. Moreover, so long as the course is presented as a secular course, for the purpose of educating children as to the significance of religion in history and in shaping today's western civilization, there would be no ground for objection that it might stimulate their interest in pursuing their own religious beliefs and education in the Church. [This hopefully being an incidental and beneficial result of such a course.]

578
SeJ>tember 8, 1964
OPINION TO THE STATE HIGHWAY DEPARTMENT
This will acknowledge and reply to your request for an official opinion as to whether or not the State Highway Board and State High-
way Department has legal authority to promulgate rules and regula-
tions to qualify contractors and limit the amount of work on which they can bid.
You state in your letter that a Resolution was adopted by the State Highway Board at its regular meeting on August 20, 1964, and that the director appointed a committee to implement Item 7 of the Resolution, which reads as follows:
"7. That this Board and this Department at once start the preparation and adoption of written rules and regulations requiring contractor qualification and setting forth the requirements and administrative procedure for the guidance of the Board, as well as for contractors. Special attention shall be made to allowing a contractor more work than he can do."
I call your attention to 95-1620, subsection (b), of the Georgia Code Annotated, which provides:
"The chairman of the Highway Board shall advertise for competitive bids on all road contracts, bridge contracts, and all other construction contracts, involving funds in the amount of $1,000 or more, all of which must be approved by the State Highway Board or a majority thereof in writing and no contract shall be made or let without two or more bids from reliable individuals, firms or corporations, ...." (Emphasis added)
Your attention is also called to 95-1617 of the Georgia Code Annotated, which provides in part:
"All contracts for highway and bridge construction shall be in writing and these contracts as well as all contract letting, shall have the approval of the State Highway Board or a majority thereof...."
Referred to in these code sections are the duties of the State Highway Board now vested in the Director of the State Highway Department, by virtue of the Act Reorganizing State Highway Board, approved January 20, 1963 (Georgia Laws, p. 3).
I call your further attention to my opinion to Honorable Carl E. Sanders, Governor, of May 15, 1963, interpreting and construing this Act. In that opinion, which I still adhere to, I stated:
"The Board is now solely a policy-making body, presided over by the Chairman. On the other hand, the details of dayto-day administration, such as the employment and discharge of personnel, the control of funds, advertisement of bids, and all other similar duties administrative in nature, are to be exercised by the Director."

579
It follows that the question of promulgating rules and regulations to qualify contractors and limit the amount of work on which they can bid is administrative in nature. However, as a matter of good business practice, I suggest that when and if rules and regulations are adopted of this nature they be submitted to the Board for approval since an undertaking of this sort involves a change in policy.
Section 95-1620, supra, concerning the awarding of contracts serves to protect the public interest by preventing the awarding authority from arbitrarily giving contracts to whomever it wishes. However, this statute is flexible enough to allow investigation of the various bidders and consideration of their qualifications and ability to perform satisfactorily the work involved on the particular project. To accomplish this, the statute provides that the contract shall be awarded to "reliable bidders." That directive does not compel the awarding of a contract to the lowest bidder who is financially responsible or who is able to produce responsible sureties; rather, it invests in the awarding authority discretionary power to determine which bidder is most likely, with regard to skill, ability and integrity, to do faithful and conscientious work and to fulfill promptly the contract according to its letter and spirit.
Public offices, in awarding contracts, perform not merely administrative duties but duties of a quasi-judicial and discretionary nature and, in my opinion, the courts, in the absence of fraud or a palpable abuse of that discretion, will not interfere with their decisions as to acceptance of bids.
The word "reliable" is frequently given a meaning by the courts of "worthy of confidence" or "one who may be relied upon." Quinn v. Daly, 300 Ill. 273, 133 N.E. 290, 291 (1921); 36A Words and Phrases 452.
The authority of the State to regulate any business, trade or occupation in order to protect the public health, morals and welfare is based upon its police power. Your attention is therefore called to Ga. Const. Art. IV, Sec. II, Par. II; Georgia Code Annotated 2-2502, which provides:
"The exercise of the police power of the State shall never be abridged, nor so construed as to permit the conduct of business in such manner as to infringe the equal rights of others, or the general well-being of the State."
I think it is obvious that a statute ( 95-1620, supra) which reasonably lends to discourage practices of abandonment of contract, diversion of funds, departure from terms of contract, etc., by contractors is calculated to protect the public welfare and is well within the legitimate exercise of the police power. I can find no case in Georgia which holds that the regulation of contractors is within the police power of the State. However, a case closely in point is the Supreme Court decision of Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 370 (1939). In speaking of how the courts would deal with another class of public statutes affecting either the whole State or a distinct group of people, the court stated:

580
" 'This court announced the doctrine that w h e n t h e right to enact the law depends upon the existence of facts, it is the duty of the legislature before passing the bill, and of the Governor before approving it, to become satisfied in some appropriate way that the facts exist; but no authority is conferred upon the courts to hear evidence and determine as a question of fact whether these constitutional departments of the State government have properly discharged such duty.' It is appropriate to say that the foregoing statement was made to apply to a situation where the power of the legislature to enact was dependent upon the ascertainment of certain facts.
"
Your question here under consideration is the ascertainment of what class of contractors are "reliable," under a given situation, or particular set of facts.
In the Holcombe case, supra, at page 371, the Supreme Court stated:
"But it may be broadly stated that in the process of enactment of all statutes the legislature exercises its judgment as to the appropriateness or necessity of its own legislation, and thus determines the end to be achieved for the public good and selects the instrumentality to accomplish this objective. The only requirement by which the General Assembly is bound, in its exercise of the police power of the State, is that in selecting the instrumentality to achieve a legitimate end it must choose a means or an agency or a method that is of a nature reasonably suited or adapted to accomplish the purpose. The re,gulation must not be arbitrary, and must not be capriciously founded. 'The validity of legislation which would be necessary or proper under a given state of facts does not depend on the actual existence of the supposed facts. It is enough if the lawmaking body may rationally believe such facts to be es,tablished. Under the American system of government by the people through their chosen representatives, practical legislation admits of no other standard of action. The fact that the finding of the legislature is in favor of the truth of one side of a matter as to which there is still room for difference of opinion is not material.'
"Each department of the Government is supreme in its own field, and must be allowed full freedom for the exercise of its separate functions until it transcends the bounds fixed by the constitution. The General Assembly is a representative body, representing the people of the whole State by their selection; and in the particular instance of the enactment now under review they concluded, for reasons satisfactory to themselves, certain conditions existed which called for extensive re!gulation, .... The power which the le.gislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to that end, is very large...." (Emphasis added)

581
I therefore conclude that the legislature has enabled the Director of the State Highway Department to adopt reasonable rules and regulations to qualify contractors and limit the amount of work on which they can bid.
Some States have pre-qualification statutes. Others allow prequalification of contractors under the police power, as I believe can be done in Georgia.
For reasons herein stated, the authority of the Director of the Highway Department is delegated from the legislature and the Director must, for practical reasons, be given a limited amount of discretion to carry out these duties, the limitation being that authority cannot be exercised in an unreasonable manner. Usually the courts will not discourage the decision of a qualifying authority unless such decision is contrary to law, arbitrarily oppressive, or not supported by the evidence in the case. Coop,er v. Rollins, 152 Ga. 588 (2) (1921); and City of Atlanta v. Awtry and Lowndes Co., 205 Ga. 296 (1949).
To clearly answer your inquiry, in my opinion the Director of the Highway Department has legal authority to promulgate rules and regulations to qualify contractors and to limit the amount of work on which they can bid.
September 9, 1964
CITY OFFICIALS
You inquire as to whether a resignation can be effective prior to acceptance, and whether a public official can withdraw a resignation prior to its acceptance. The factual situation under which the questions arose is the tender of resignations by the Mayor and three Councilmen of the City of Odum to the City Clerk on August 24, and their subsequent retractions in writing withdrawing their resignations on September 1, 1964. The resignations were never officially accepted by the remaining members of the Odum City Council.
The case of Fryer v. Norton, 67 N.J.L. 23, 50 Atl. 661 (1901), held where a mayor tenders his resignation to the city council and the acceptance is refused, such resignation is ineffectual. Other authority may be found in 67 C.J.S. Officers 55 (1950), that a resignation which is tendered but is withdrawn before acceptance is not effective. Somewhat to the same effect is Patten v. Miller, 190 Ga. 123 (1940), in which the court held the governor could not later accept a resignation which was tendered only for the time and place at which made. The Georgia Code, as unofficially codified in Georgia Code Annotated 89-501 (7), refers to vacancies of an office for vacancy by resigation when accepted. Unless a resignation is meant to be effective immediately (which a tender would not seem to be), it may be withdrawn before acceptance.
Based on these authorities, it is my opinion the tendered resignations, having been withdrawn prior to any action upon them by the

582
remaining Councilmen, were rendered void and the Mayor and Councilmen continue to hold office.
September 14, 1964
OPINION TO THE 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 "Typical Facts" concerning bonds, which may from time to time be issued by Georgia Corporations Pursuant to Indenture or Deeds of Trust naming a Georgia Bank or Trust Company as Trustee, but which bonds are to be held and owned by parties who are not resident in Georgia and who otherwise have no office or agent in the State of Georgia in connection with such bond issue or issues.
Your letter described the circumstances under which the sale of such bonds to nonresident institutional investors are typically negotiated, such circumstances being generally as follows:
The bonds are secured by a Trust Indenture or Deed conveying real or personal property in Georgia to a Georgia Bank or Trust Company as Trustee. The bonds are sold to out-of-state investors or Purchasers, none of whom are organized or domesticated or have their principal offices within Georgia. The offering of the bonds and substantially all negotiations with respect thereto are carried on outside Georgia. None of the Purchasers have businesses in Georgia related to such bond sale or to such property conveyed as security therefor, although certain of the Purchasers may have offices in Georgia for the handling of activities not related thereto. All negotiations on behalf of the Purchasers of the bonds are handled from the principal offices of the Purchasers outside Georgia without participation of any agent or employee of the Purchasers within Georgia. All closings under the transaction are consummated outside Georgia and the bonds themselves are kept at the principal offices of the respective Purchasers of their custodians outside Georgia. The Georgia Trustee takes delivery of the bonds from the issuer, authenticates them or otherwise identifies them, enters a record of same on its books, and delivers the bonds to the out-of-state Purchaser. Transfers of registered bonds are made on the books of the Georgia issuer kept at the office of the Georgia Trustee (or of any other appointed registrar) for that purpose; coupon bonds are transferable by delivery unless registered as to principal. The Trust Indenture provides that the Trustee will receive payments of principal and interest on the bonds and remit same to the out-of-state Purchasers, give customary notices of default on behalf of such Purchasers, advise and counsel the Purchasers in respect to factual data concerning the bonds ; conduct any foreclosure proceedings in event of default in the bonds, keep books, records and accounts in connection with such servicing of the bonds, and perform usual additional acts incident to all of such duties. Pay-

583
ments of principal and interest on the bonds are made at the principal office of the Georgia Trustee or directly to the Purchaser outside Georgia.
You advise also that the bonds will be "bonds" within the meaning of Section 2(a) Part I of the 1953 Intangible Property Tax Act, and not "long term notes secured by real estate" pursuant to 92-163 of the Georgia Code Annotated.
Such "Typical Factual Situation" appears to be quite similar to the factual situations which were the subject of previous opinions rendered by this office on certain specific bond issues, namely, that opinion dated May 19, 1955 involving bonds issued oy Bowaters Southern Paper Corporation (Ops. Att'y Gen. 769 (1954-56) and that opinion dated October 27, 1962 involving bonds issued by Great Southern Land & Paper Company (Ops. Att'y Gen. 533-537 (1962). Particularly are such proposed facts similar to the factual situation submitted in the Great Southern Land & Paper Company bond issue. One particular distinction noted between your "Typical Factual Situation" and the facts in the Great Southern issue is that your "Typical Factual Situation" involves a local Georgia Bank or Trust Company as Trustee instead of a Trustee whose principal office and place of business is outside Georgia as was the case in the Great Southern issue. Your letter requests my opinion as to whether the incidence of the annual property tax will be different where a Georgia Trustee services such bonds from such incidence where a nonresident Trustee services the bonds. In order to simplify the question by relating it to a particular factual situation, this opinion is based on the facts as contained in such previous official opinion on the Great Southern bond issue with the assumption that a local Georgia Bank or Trust Company acts as Trustee of such bonds instead of the out-ofstate Trustee as in Great Southern.
Consistent with the above, therefore, and basing this opinion upon that factual situation submitted in respect to the previous opinion above mentioned concerning the Great Southern bond issue (such factual situation changed, however, by assuming that the Trustee involved is a Bank or Trust Company having its principal office and place of business in Georgia), it is my opinion that the Purchasers of such bonds under such factual situation will not be liable for the annual property tax on bonds so acquired and held under Section 2 (a) of the Intangible Property Tax Act of 1953 ( 92-162(a) of the Georgia Code Annotated). In other words, on a factual situation otherwise identical to that of Great Southern, the presence of the Georgia Trustee (meaning a state-chartered Bank or Trust Company or a National Bank with principal office in Georgia) to service such bonds instead of a nonresident Trustee will not convert the otherwise nontaxable situation into one that is taxable so far as such annual property tax is concerned. The statutes and court decisions cited copiously in my previous opinions on this subject (Bowaters and Great Southern) serve also as authorities for this opinion.

584
September 14, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you request my opinion on a statement of facts and question as follows:
"FACTS: Taxpayer received extension of time for filing of 1960 calendar year income tax return and filed same on October 15, 1961. This Department issued notice of deficiency under the provisions of Section 92-3302 on June 12, 1962, and taxpayer paid the additional tax within thirty days. On August 7, 1964, this Department issued another notice of deficiency against the same 1960 return. Items of adjustment, on the second notice, were not the same as items on the first notice.
"QUESTION: Is this Department estopped from collection of tax under the second notice by the provisions of Section 92-8435 and letter from the Attorney General's office to the Commissioner dated October 15, 1947 ?"
My opm10n of October 15, 1947, dealt with Georgia Code Annotated 92-8435 as it applied to the reopening of an assessment. That opinion would not be controlling under facts as stated above inasmuch as they show no assessment to have been made.
Section 92-3302, Georgia Code Ann., set out in part below, definitely and clearly establishes a time within which an assessment of income taxes cannot be made once a notice of deficiency has been mailed (excepting, of course, the provision for jeopardy assessment).
Section 92-3302
* * * *
"(a) ... within 30 days after such notice [of deficiency] is mailed, the taxpayer may file a petition with the Commissioner for a redetermination of the deficiency. No assessment of a deficiency in respect to the tax imposed by this: or any prior law ... shall be made ... until such notice has been mailed to the taxpayer, nor until the expiration of such 30 day period nor, if a petition has been filed with the Commissioner, until the decision of the Commissioner shall have been made known to the taxpayer.
* * * *
" (c) If the taxpayer does not file a petition with the Commissioner within the 30 day period prescribed in subsection (a) of this section, the deficiency, notice of which has been mailed to the taxpayer, shall be assessed and shall be paid upon notice and demand from the Commissioner." [Emphasis Supplied]

585
The facts as stated show that the Taxpayer paid the tax as shown on the notice of deficiency within the 30 day period and prior to the time when the Commissioner would be permitted by law to make an assessment; further, they do not show that any assessment has ever been made.
The notice of deficiency mailed August 7, 1964, is therefore in order, is within the three-year statute, and is not controlled or barred by the two-year statute on re-opening of assessments. See, Georgia Code Ann. 92-8435.
It would appear that the Taxpayer's situation is governed by the following provision of Section 92-8428:
"(b) The acceptance by the Commissioner or the Department of Revenue of a payment received with respect to any tax or license fee shall in no wise imply that such tax or license' fee is thereby fully assessed, fixed, determined or satisfied. All persons making such payments shall understand that such payments will be accepted and the proper account credited therewith subject to a final determination of its correctness in due course, any condition expressed in such payment to the contrary notwithstanding; however, this shall not apply to payments received pursuant to authorized compromises and settlements, which shall be governed by the special agreements and proceedings applicable thereto."
September 14, 1964
INTANGIBLES TAX
This is in reply to your letter concerning the Georgia intangible recording tax and whether or not provision is made for any exemptions which might inure to the benefit of the New York City Employees' Retirement System.
The tax in question is imposed on "every holder of long-term notes secured by real estate ... at the rate of $1.50 for each $500 or fraction thereof of the face amount of the note or notes ...." There is no exemption from this tax contained in the Act. Georgia Laws 1953, Nov.-Dec. Session, page 379 et seq.
Article VII, Section I, Paragraph IV, of the Constitution of the State of Georgia enumerates what properties are exempt from taxation. This constitutional provision provides that the General Assembly of Georgia may exempt property from taxation where the intangible property in question is held in trust for the exclusive benefit of religious, educational and charitable institutions no part of the net profits from the operation of which can inure to the benefit of any private person. It also provides that the General Assembly may exempt from taxation intangible personal property owned by a trust forming a part of a pension, profit-sharing or stock bonus plan if the trust is exempt from Federal income taxation under 165(a) of the

586
Federal Internal Revenue Code. However, the General Assembly has not chosen to make any exemptions in this respect.
You state in your letter that the Federal National Mortgage Association has advised you that they are exempt from the payment of this tax. However, it must be remembered that the State of Georgia is without authority to tax the Federal Government or any of its instrumentalities. Georgia is not, however, prohibited from taxing the City of New York.
It is my opinion that the New York City Employees' Retirement System is subject to the tax imposed under Georgia's Intangible Recording Tax Act.
September 16, 1964
OPINION TO THE BOARD OF EXAMINERS OF PRACTICAL NURSES
I have your letter requesting an official ruling of the Attorney General in reference to the question of the legality of the Advisory Committee to the Board of Examiners of Practical Nurses of Georgia being reimbursed for their expenses or "out of pocket" expenditures incurred in attending meetings of the Board of Examiners of Practical Nurses.
Section 84-1031 of the Georgia Code Annotated provides for the establishment of an Advisory Committee to serve in an advisory capacity to the Board of Examiners of Practical Nurses of Georgia on matters pertaining to licensing of practical nurses and also on matters of training and instruction. The section further provides that the members of the Advisory Committee shall serve without compensation.
In 67 C.J.S. Officers 95 (1950), it is said:
"A mileage or traveling transfer allowance which is not intended for the personal benefit of the officer or as remuneration for services or time, but rather to cover actual and necessary expenditures on official business, is not compensation within the meaning of a constitutional prohibition against a reduction in compensation during the term of office, and hence may be reduced during the officer's term."
In an official opinion of the Attorney General dated December 12, 1963, to the Department of Family and Children Services, I advised that judges of the Superior Court and Juvenile Court could serve on an Advisory Council to the Division for Children and Youth of the Department of Family and Children Services, and that the said judges serving on such Advisory council could be reimbursed for actual "out of pocket" expenses and that the Department was legally authorized to reimburse their Advisory Council, although such judges could not legally be paid a salary or compensation for. such service.

587
It is my opinion that the said official ruling of December 12, 1963, applies with equal force and validity to the question which you have propounded, and it is my opinion that the Advisory Committee to the Board of Examiners of Practical Nurses of Georgia may be reimbursed upon the presentation of proper vouchers for their actual expenses or "out of pocket" expenditures incurred in the necessary attendance of meetings of the Board of Examiners of Practical Nurses of Georgia. Such expenditures would necessarily include items of travel expense or mileage allowance, meals and lodging.
September 16, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
We are pleased to acknowledge receipt of your request for an official opinion concerning the provisions of the Water Quality Control Board Act (Georgia Laws 1964, p. 416) as they relate to the powers of the State Board of Health and the State Water Quality Control Board. You state in your letter that the objective in requesting my opinion on this question is to receive a delineation of the powers and duties of the State Board of Health and the Water Quality Control Board as they relate to water treatment, water pollution control or any other matters.
Under the provisions of the New Health Code (Georgia Laws 1964, p. 499), you will find the enactment of a Water Supply Quality Control Act which is codified as Chapter 88-26 of the Georgia Code Annotated. The intent of the Act is set out in 88-2601, to wit:
"It is hereby declared to be the policy of the State of Georgia that the public and community water supplies of the State shall be utilized prudently to the maximum benefit of the people and their use and need for such water and that the quality of such water is a major factor involving the health and welfare of all people in the State of Georgia.... "
The Act further states that the intent of such law is to provide administrative facilities and procedure within the executive branch of the government for determining policy requirements and standards governing the sources, distribution, purification, treatment and storage of water for public or community water supp,ly systems. The State Board of Health is then designated as the State agency to administer the Act.
Under the provisions of 88-2603 of the New Health Code, the powers and duties of the State Board of Health, its agents and employees are specifically enumerated. I call your particular attention to subsections (2), (3), (7) and (9) of 88-2603, which provide as follows:
"the said Board shall have the following powers and duties: ...

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41 (2) To establish standards of quality for water that will be distributed in water supply systems;
"(3) To establish such policies, requirements or standards governing the source, distribution, purification, treatment and storage of water for public or community water supply systems as it deems necessary for the reasonable and proper use thereof in conformity with the intent of this Chapter;
* * * *
41 (7) To advise, consult, and cooperate with other agencies of the State, and political subdivisions thereof and ...
* * * *
"(9) To adopt and promulgate rules and regulations applicable throughout the State governing the installation, use and operation of systems, methods and means for furnishing water to public or community water supply systems as may be determined necessary . . . ;"
I also call your attention to 88-2617 of the Health Code where it is provided that the provisions of the Water Supply Quality Control Act are intended to sup,plement existing laws and no part thereof is to be construed as repealing any existing laws for the protection of fish, shellfish and game or any P'rovisions of law governing the, pollution of lakes and streams of the State.
Under the provisions of Section 2 of the Water Quality Control Board Act (Georgia Laws 1964, p. 416), it is declared to be the policy of the State of Georgia that the water resources of the State shall be utilized prudently to the benefit of the people in order to restore and maintain a reasonable degree of purity in the waters of the State, and to require, where necessary, reasonable treatment of sewage, industrial wastes and other wastes prior to their discharge into the waters of the State. To achieve this end the government of the State is to assume responsibility for the quality of said water resources and for the establishment and maintenance of a water quality control program adequate to meet the needs of the State in the conduct of such program.
The General Assembly then created a hybrid organization within the Department of Public Health with the authority to require the use of reasonable methods to prevent and control the pollution of the waters of the State. This agency is known as the "Division for Georgia Water Quality Control." This Division is under the control and supervision of the Water Quality Control Board which is composed of nine (9) appointed members representing various interest groups throughout the State. Under the provisions of the Water Quality Control Board Act, the Water Quality Control Board exercises general supervision over the administration and enforcement of the Act. The only function the State Board of Health has under the provisions of the Water Quality Control Board Act is to promulgate jointly with the Water Quality Control Board such rules and regulations as are necessary to administer the provisions of the Act properly.

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It is my opinion, therefore, that the Water Quality Control Board Act is aimed at "persons polluting the waters of the State" and that the Water Quality Control Board Act gives sole authority, except for the joint promulgation of rules and regulations, to the Water Quality Control Board to take such steps as will eventually bring about the establishment and maintenance of a reasonable degree of purity in the waters of this State.
The provisions of the Health Code dealing with "Water Supply Quality Control" are aimed at a target other than pollution per se. They center on the regulation of the quality of water which is a part of a supply system. The Board of Health does appear to have a direct interest in the pollution problem as evidenced by the fact that the Division for Water Quality Control has been created within the Department and that the Board has the power to promulgate jointly rules and regulations governing such pollution; however, the problem of treating pollution is a task placed squarely on the shoulders of the hybrid Division, the Water Quality Control Board.
It therefore appears that the spirit of cooperation between the Water Quality Control Board and the State Board of Health is essential in effectuating a rewarding water quality program, and that administrative understanding should be reached between these two agencies as soon as possible.
For your further information, I am unable to find anything in law or in actual administrative practice of the various organizations of State government which would prohibit the operation of an autonomous Board as a Division within a Department of State government.
It is my further opinion that those problems dealing specifically with water supply belong to the State Board of Health itself while those problems dealing specifically with water pollution should be handled by the Division of Water Quality Control specifically set up for this major problem.
September 16, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting my opinion on the following statement of facts and question:
"Facts: Husband and wife filed joint 1962 calendar year income tax return on April 1, 1963, and paid in full tax liability as shown on return. On June 15, 1963, taxpayers filed amended separate returns which combined reflect less tax liability than the joint return originally filed, this reduction due to filing separately, thus reducing the tax rate. Taxpayers filed claim for refund on Form 550 for the difference of tax.
"Question: Can this Unit legally issue refund under the provisions of 92-8436 of the Georgia Code Annotated?"

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There is no provision in the Georgia law authorizing a husband and wife who have filed a joint return, or who have filed separate returns, to amend their return or returns after the due date thereof so as to change their election of basis and file on the opposite basis.
A statutory provision in the Federal Law (Section 6013 (b) of the 1954 Code) permits amendment within the three-year limitation period to change from a separate return basis to a joint return basis, but in the absence of special statutory provision, Federal taxpayers are not permitted after the due date of the return to amend so as to change from a joint return basis to a separate return basis.
It is my opinion that a husband and wife under the Georgia law, as under the Federal, may up until the due date of the return amend a previously filed return or returns so as to change from a joint return basis to a separate return basis, or vice versa, but that beyond the due date of the return they have no such election.
Georgia Code Ann. 92-8436 authorizes the Commissioner to refund taxes that have been erroneously or illegally assessed and collected. Where taxpayers have exercised their right under the law to elect to file a joint return of income and have so filed as of the due date of the return, the accompanying remittance and payment of the tax shown to be due thereon cannot have been "erroneously or illegally assessed and collected" because of the basis on which the taxpayers chose to file.
September 18, 1964
STATE AND MUNICIPAL BONDS
We received your letter in which you discussed the hiring of private law firms by political subdivisions for the purposes of validating and providing opinions as to the legality of state and municipal bonds.
Validation of bonds is provided for by Chapter 87-3 of the Georgia Code Annotated, which sets up procedures for the validation of bonds by counties, municipalities or other political subdivisions. Also, 87-814 through 87-824 prescribe the procedures of validation for revenue bonds.
Generally, Chapter 87-3 makes provision for service of notice by the officer of the political subdivision to the solicitor general of that judicial circuit, or upon the attorney general, of the conducting and favorable return of an election for the purpose of a bond issue. After service of the required notice, the solicitor general or attorney general (in almost all instances it is the local solicitor general) prepares and files with the clerk of the superior court a petition setting forth the particulars of notice, the principal amount of bonds, purposes, interest rate, and certain other information. An order is then obtained from the court requiring the subdivision to appear at a time and place (which must be within twenty days of filing the petition) to show cause why the bonds should not be confirmed and validated.

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The clerk is required to publish notice to the public of the hearing at least twice in the newspaper. Any resident of the political subdivision may become a party to the proceedings, and if dissatisfied with the judgment, may except to the findings. If no exception is filed, the judgment confirming and validating the issuance is final and becomes conclusive upon the validity of the bonds against the political subdivisions.
Sections 87-814, et seq., are very largely the same.
As you can see, the actual validation of the bonds is performed by the solictor general or attorney general. This is to be distinguished from opinions as to the validity of these bonds such as are rendered by private law firms. These firms issue these opinions for the ultimate benefit of prospective bond purchasers. Their opinion is valued not because of the fact they were retained by the political subdivision, but because of their long experience and specialization in the bond field, which lends authority to their pronouncements. In fact, it is usually not firms themselves, but actually the particular individual lawyer who is a member of the firm, whose opinion is respected.
There is nothing which would prohibit the attorney general from rendering his opinion as to the legality of bond issues, and this could be done; however, it is questionable whether he, or anyone on his staff, would be recognized by purchasers in the bond market as having sufficient experience and specialization to be relied upon in investing other persons' funds in such bonds. Nor could the services of an individual attorney be feasibly secured for the office, since the high degree of specialization enables such individuals to command high fees and their earning capacity is thus many times the amount which could be paid them as government employees.
A political subdivision is not compelled to retain the services of any firm to express an opinion as to the validity of the bonds which the subdivision wishes to offer for sale. A prospective purchaser could retain counsel to investigate and confirm their validity, but if this were done, it would result in a substantial cost to the interested purchaser before he could make a decision as to whether to purchase the bonds or not. Confronted with such an expense, prospective bond purchasers would follow the path of easiest resistance and simply look elsewhere for the placement of monies at their disposal. Even were the purchaser to proceed, he would, by the time of actual purchase, already have invested a substantial amount, and would thus feel compelled to discount this from the amount he otherwise would be willing to pay for such bonds, or would demand a slightly higher interest rate. This would result in a net decrease in proceeds from the bond issue which would be available to the political subdivision, or an over-all increase in cost.
Since the cost of making an investigation and rendering an opinion would be incurred by many purchasers, and this would be passed on to the issuer in the form of higher interest or a greater discount, the total legal cost to the political subdivision would in most, if not all, instances be much greater than if the services of a recognized competent bond attorney were originally retained to issue an opinion as to validity for the political subdivision.

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It is really a simple matter of economic return. Since bond purchasers value only the opinions of certain recognized specialists, it is easier, and in the final analysis more profitable to a subdivision to request and receive the opinion of such specialists before the bonds are offered for sale. Prospective purchasers can then decide whether to buy on the merits of experience, credit, ratings, etc., without going to an additional legal expense which would ultimately be passed back to the seller. It would be nice if there were a recognition of state attorneys general as bond attorneys. There could be a saving to subdivisions, but in the absence of such recognition, any opinion would be an unrewarded duplication.
September 22, 1964
OPINION TO THE DEPARTMENT OF AGRICULTURE
This is in reply to your letter in which you request my opinion as to whether the Agricultural Commodity Commission for Peanuts is liable for an ad valorem tax assessed by the City of Tifton, Georgia.
Under date of May 23, 1963, this office rendered an unofficial opinion stating that the Agricultural Commodity Commission for Peanuts is by Act of the legislature established as a public corporation and an instrumentality of the State of Georgia, and that as such, the property of the Commission for Peanuts is public property and exempt under the laws of Georgia from the ad valorem tax.
For the reasons set out in the aforementioned unofficial opinion, a copy of which is attached hereto, it is my opinion that the property of the Georgia Agricultural Commodity Commission for Peanuts is exempt from the ad valorem tax assessed by the City of Tifton, Georgia.
September 22, 1964
OPINION TO THE STATE MEDICAL EDUCATION BOARD
In answer to your letter in which you asked if the Chairman of the State Medical Education Board would be in compliance with the law requiring both the Secretary and Chairman to sign all checks, vouchers and warrants, should a signature device be used for the purpose of affixing his signature, it is my opinion such procedure would be in order.
The Uniform Commercial Code, unofficially codified as 109A3-104(1), Georgia Code Annotated requires that any writing to be a negotiable instrument must be signed by the maker. There are as yet no annotations available as to the meaning of "signature" as intended by this particular section, but reference may be made to cases having been previously decided under the Uniform Negotiable

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Instruments Law which was repealed upon adoption of the Uniform Commercial Code. The old law, in 14-201 (1), held that a negotiable instrument must be in writing and signed.
At least one case has been decided in Georgia almost directly on this point -Katz v. Teicher, 98 Ga. App. 842 (1959). In Headnote 3 of the opinion, the court, in quoting from Bank of Ringgold v. Poarch, 30 Ga. App. 102 (1923), held:
"An instrument to be negotiable must conform to the following requirements: (1) It must be in writing and signed by the maker or drawer....
"Code 14-201. This Code section is a part of the Uniform Negotiable Instruments Law. 'The signature may be in one's handwriting, or printed, engraved, lithographed or photographed so long as they are adopted as the signatures of the signers.' Britton, Bills and Notes, p. 33, 8 and citations; 46 A.L.R. 1498 (Annotation) ; and citations. Where the name of a corporation is signed to a promissory note by one authorized to do so, the validity of the corporate signature is not affected by the fact that it does not show on its face who signed for the corporation. National City Bank v. Zimmer Vacuum Renovator Co., 132 Minn. 211 (156 N.W. 265). 'A printed signature or one lithographed on an instrument by the party as signed by him is sufficient.' "
This is entirely consistent with the rule prevailing in other jurisdictions, which may be best summarized by quoting the headnote from 10 C.J.S. Bills and Notes 73c (1938):
"A party may sign a bill or note [check] using an abbreviation, mark or assumed name; his signature may be printed, lithographed, or put on the instrument by means of a hand stamp."
Several cases are cited to uphold this position, which is the almost uniform commerical practice today. Among these are Cadillac State Bank v. Cadillac Stave & Heading Co., 129 Mich. 15, 88 N.W. 67 (1901) ; Carrol v. Mitchell-Parks Mfg. Co., 60 Tex. Civ. App. 263, 128 S.W. 446 (1910); and Midkiff & Caudle v. Johnson County Savings Bank, (Tex. Civ. App.) 144 S.W. 705 (1912).
Of course, should the Board decide to approve this method of affixing the signature of the Chairman, precautions should be taken regarding the possession of the device, and the authority for its use should be strictly delineated in order to avoid any confusion or misuse. It would probably be appropriate and desirable to require additional bonding of any person charged with safeguarding the signature device in an amount which would be deemed sufficient to cover any unauthorized withdrawals from the account.

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September 22, 1964
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I wish to acknowledge your recent letter, enclosing copy of letter from President E. D. Harrison of the Georgia Institute of Technology, requesting a formal opinion concerning a contract with General Nuclear Engineering Corporation, which is merging with the parent company, Combustion Engineering, Inc.
I am pleased to advise that my assistant, James H. Therrell, has handled this matter directly with Mr. J. R. Anthony, Controller of Georgia Tech.
Mr. Therrell reviewed the file and advised Mr. Anthony that upon the submission of authenticated corporate documents with respect to the merger of the General Nuclear Engineering Corporation with Combustion Engineering, Inc., and with proof of corporate authority on the part of Combustion Engineering, Inc. to receive, receipt, and execute releases for any payments due by the Regents of the University System of Georgia to General Nuclear Engineering Corporation, and providing for the assignment of the contract between the Regents and General Nuclear and the assumption of all liabilities and obligations of General Nuclear Engineering Corporation by Combustion Engineering, Inc., that it would be legally proper for the Regents of the University System and Georgia Tech to assent to and recognize the assignment of the contract, effective September 1, 1964.
In addition, I think that there should be a formal assignment of the contract by General Nuclear Engineering Corporation to Combustion Engineering, Inc., which should include provisions with respect to receipt of money and executing releases therefor, and the assumption of all liabilities and obligations under the contract.
September 22, 1964
SCHOOL BONDS
This is in reply to your letter wherein you request certain opinions concerning the disbursement of funds procured through the issuance of school bonds.
As I understand the situation, the basic facts are as follows:
On March 6, 1962, the voters of the Griffin-Spalding County School System authorized the issuance of school bonds in the amount of $400,000.00 for the advertised purpose of "erecting, constructing and equipping two vocational-technical schools for the Griffin-Spalding County School System." [See "Notice of Bond Election"] Subsequent to such voter approval and the rendering of a validation judgment on April 27, 1962, all of such bonds were issued and sold. An architect was hired and both preliminary and working drawings for the two

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vocational-technical schools have been recently completed and the architect paid for his services.
During the period of time between the bond sale and completion of the architect's services, however, the school board came to the conclusion that due to changed conditions, the construction of the two vocational-technical schools as originally contemplated was no longer desirable and might well constitute a waste of public monies. You have therefore asked for an opinion as to the following questions:
(1) May the school board build only one vocational-technical school rather than two?
(2) May the school board abandon both projects and invest the bond proceeds at a yield sufficient to pay the principal and interest of the bonds as they become due and payable?
It is noted that neither the terms of the "Notice of Bond Election" nor of the Bond itself specify the amount of bond proceeds to be expended in the construction of each school, the purpose of the issue being instead more generally stated by each as being
"for the purpose of erecting, constructing and equipping two vocational technical schools . . . "
I am also informed that there is no trust indenture respecting the bond issue and hence no problem of additional restrictions respecting the disbursement of bond proceeds as might exist had such an indenture been entered into.
OPINION
Inasmuch as the stated purpose of the bond issue, to wit:
"erecting, constructing and equipping two vocational-technical schools . . . ,"
is silent as to the portion of the total proceeds ($400,000.00) to be used for each school, the determination of the exact sum to be expended for each school is clearly a matter within the discretion of the local school board. As to whether the board may refuse to construct either or both of the schools, however, no precise answer can be given. While a Colorado case has been found which tends to support the right of a governing body to abandon a project for which it has issued bonds, I have been unable to locate any other decision in point either in Georgia or elsewhere. Thus while the logic of this sole Colorado case to me seems sound, I can give no assurance that it would be followed by the courts of this State. For this reason a decision by the school board to construct only one school or to construct neither of the schools for which the bonds were issued, should be made only .after due consideration of the possibility that legal action resulting from such decision might result in a court adjudication adverse to the school board.
DISCUSS.! ON
Georgia Code Ann. 87-201 provides that when a county, municipality or division shall desire to incur a bonded debt it must advertise

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the election requisite to the issuance of the bonds by a notice in the newspaper in which sheriff's advertisements for the county are published. The section also provides that such notice shall specify:
"the principal amount of bonds to be issued, the purpose for which the same are issued, the interest rate or rates ...." (Emphasis added)
And in connection with school bonds it has been held that the county board of education is the authority contemplated under the provisions of this code section to call, manage, consolidate, and declare the result of the bond election. See Nelms v. Stephens County School District, 201 Ga. 274, 275 (5a) (1946).
It has long been settled in Georgia that 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 legal requirements set forth by the statute are strictly complied with in every material particular. See Berrien County v. Paulk, 150 Ga. 829, 832 (1921). Hence where the above mentioned statutory notice of the bond election does not set forth the purpose of the bond issue, it is insufficient. Bowen v. Mayor, etc. of Greensboro, 79 Ga. 709 (3) (1887); Smith v. Mayor and Council of Dublin, 113 Ga. 833 (1) (1901).
Moreover, where the "purpose" of the issue is properly stated in the notice, the general rule announced in 64 C.J.S. Municipal Corporations 1934, to wit:
"The funds or proceeds arising from a sale of municipal bonds or other securities must be used for the purpose for which the issuance of the bonds was authorized and may not be diverted to or used for other purposes."
is closely adhered to in Georgia. See, e.g., Walker v. Wheeler 210 Ga. 432 (1954); Board of Education of Paulding County v. Gray, 203 Ga. 583 (2) (1948) ; City of Fayetteville v. Huddleston, 165 Ga. 899 (1) (1928) ; Marks v. Richmond County, 165 Ga. 316 (1) (1927).
On the other hand, I have been unable to find any Georgia decision which in reference to bonds issued for multiple purposes states whether or not one of the proposed projects may be abandoned or whether all may be abandoned. In looking to other jurisdictions only one case in point was located. This decision was of the Supreme Court of Colorado, which by way of dicta stated that one of the multiple projects for which the bonds had been issued could be abandoned by the issuing authority. The facts in that case, City and County of Denver v. Currigan, 147 Colo. 125, 362 P. 2d 1060 (1961) were as follows: After the voters had approved a bond issue for fifteen specified street improvement projects, and after fourteen of such projects had been completed, the issuing authority decided that the final project (a viaduct) was no longer desirable or necessary and that to construct the same would amount to a waste of public money. The issuing. authority then decided to use the remaining funds for a new project which it considered desirable. The Court was presented with the issue of whether such ex-

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penditure on the new project would, under the circumstances, amount to an improper diversion of the bond proceed from the purpose for which the bonds were issued.
While the holding was to the effect that the expenditure of the funds originally allotted for the viaduct on other street improvements [with respect to which no notice had been given], would constitute an unlawful diversion of such funds, the court indicated that the issuing authority could abandon the fifteenth project (which it no longer deemed necessary) and invest the proceeds for use in retiring the bonds outstanding. In the words of the trial judge which the Supreme Court of Colorado cited as a correct analysis:
"I think the court, in this case, is not required to tell the city to build the viaduct ... The point now is shall the court direct the city and authorize the city to use this money for something else. That is quite different from saying 'Shall we build the viaduct?' The cases hold that a project can be aban.doned. That doesn't necessarily mean the money they were going to use for that project could be used for something else; ... It [the unexpended bond proceeds] could perhaps be invested, perhaps be used to retire the bonds. I don't know. I don't think it is the function of this court to tell the city what to do with this money". City and County of Denver v. Corrigan, supra 362 P. 2d at 1064 (Emphasis added).
It is my opinion that the above decision is based upon sound reasoning. It is quite possible that a project which appears necessary at the time the bond election is advertised might no longer be necessary or desirable when the time for expenditure of the bond proceeds arrives. The issuing authority probably ought not to be required to follow through and complete all of the announced projects when it appears that do so would be a waste of public monies and this, of course, might well be the result should a conclusion be reached opposite to that of the Colorado Supreme Court.
On the other hand there is no assurance whatsoever that the Georgia courts would follow this Colorado case. For this reason any reliance upon the same in Georgia obviously involves considerable risk, and any decision by the Griffin-Spalding County Board of Education to build only one vocational-technical school or to build no such school at all should be made only after due consideration of the fact that any legal action resulting from such decision might well result in a court adjudication adverse to the school board.
I would like to point out that should the school board decide to construct both schools, the amount to be expended on each of the two schools would seem to be a matter within its discretion. It appears to be the rule everywhere that where a bond is issued for several purposes and it is not stated what proportion of the sale proceeds shall be applied to each specific purpose, the proportion to be expended for each purpose is a matter within the discretion of the issuing authority. See, e.g., 64 C.J.S. Municipal Corporations 1934 (1950).

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September 23, 1964
OPINION TO THE MERIT SYSTEM OF PERSONNEL ADMINISTRATION
I wish to acknowledge receipt of your letter enclosing a copy of a letter from Mr. V. V. Lavroff, Comptroller of Georgia State College under date of September 8, requesting an interpretation of the law requiring physical examinations for prospective State employees.
The first question concerns physicians. Georgia Laws 1962, page 541, 1 (b), provides:
"A physician in the employ of the State, where feasible, or a licensed physician of the applicant's choice and at the applicant's expense shall make a physical examination of each person about to be appointed to a position in the State's service, ...."
Your inquiry is as to whether the licensed physician has to be licensed in the State of Georgia. The Georgia law above cited does not state that the physician has to be licensed in the State of Georgia. It is therefore, our interpretation that as long as the examining physician is "licensed" the requirements of law are met.
Your second question is in regard to the exemption of department heads from the provision of the Act set out in 6 of the 1962 Law above cited, which provides as follows:
"The provisions of this Act shall not apply to department heads or temporary employees of the State, or to students in the University System of Georgia in the employ of the State, nor shall the provisions hereof apply to any present employee...."
It is our construction of this provision of 6 of the 1962 Law that the exemption applies only to the heads of State departments and not the various subdivisions, subdepartments, and branches of departments of State Government. Therefore, as it applies to the department, the Regents of the University System of Georgia, the exemption would only apply to the Chancellor and not to Presidents of the various units of the department, nor various administrative and academic departments and subdivisions thereof.
September 23, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I wish to acknowledge receipt of your letter enclosing correspondence from Dr. Robert D. Grove of the National Center for Health Statistics, advising that the National Center is engaging in a special research project which will be of interest to many States.

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Dr. Grove, in his letter to you, states that a contract has been placed with Information Dynamics Corporation to investigate the feasibility of optical scanning devices in the preparation of vital record data for use in computers. He states that to identify and evaluate the wide range of problems inherent in the varying practices of registration of births, deaths, and fetal deaths in the several States, it will be necessary for the contractor to examine samples of the microfilm copies of vital record certificates on file in the National Center for Health Statistics.
Dr. Grove further advises that the same complete and strict confidentiality observed by his office will be enforced on any contractor employees who have need to examine individual records in the performance of the contract. We understand that the results of this research project will be available to all States.
The National Center for Health Statistics has requested your authorization to allow use of vital records information obtained from examination of microfilm copies of the State of Georgia vital records in the NCHS.
You have asked my advice as to whether or not you would be justified in agreeing to participate in this project since it involves ,confidential records.
Section 88-1723 of the Georgia Code Annotated provides as follows:
"Disclosure of 1ecords. (a) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration by the Department, it shall be unlawful for any person to permit inspection of, or disclose information contained in vital records, or to copy or issue a copy of all or part of any such record except as authorized by regulation or when so ordered by a superior court; provided, however, that the provisions of this Subsection shall not apply to records of marriages, divorces, and annulments of marriages filed in the office of the ordinary or the superior court as the case may be.
"(b) The Department may authorize the disclosure of data contained in vital records for research purposes." (Emphasis added)
It is my opinion that your Department is legally authorized and empowered to authorize the disclosure of the data as requested by the NCHS, and that you may agree to participate in the project since it involves "research purposes."
September 23, 1964
OPINION TO THE REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I wish to acknowledge receipt of your letter requesting that we advise you as to the residence status of the son of Lieutenant Colonel Hiram P. Bilyeu.

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We have reviewed all of the correspondence supplied by Colonel Bilyeu on this matter. The rules and regulations of the Board of Regents with respect to classification of students as residents or non-residents provide as follows in 6:
"Military personnel stationed in Georgia, and their dependents, may became eligible to enroll in institutions of the University System as resident students provided they file with the institution in which they wish to enroll the following materials:
(a) A statement from the appropriate military official as to the applicant's 'home of record';
(b) Evidence that applicant, if over 21 years of age, is eligible to vote in Georgia ;
(c) Evidence that applicant, if under 21 years of age, is the child of parents who are eligible to vote in Georgia;
(d) Evidence that applicant, or his parents filed an income tax return in Georgia during the preceding year;
(e) Other evidence showing that a legal domicile has been established in Georgia."
It is our recollection that when these rules were revised in January of 1964, every effort was made to give full consideration to applicants who were the children of military personnel stationed in Georgia. It was considered, however, that a basic requirement would be that the military personnel parents of a dependent applicant establish a legal domicile in Georgia in order for the applicant to be eligible to pay resident tuition fees.
Rule No. 6 also requires that one of the essential elements in the establishment of legal domicile is that the parents be eligible to vote in Georgia. This requirement, from the correspondence supplied by Colonel Bilyeu, has not been met, and we must, therefore, rule that Colonel Bilyeu's son has not met the resident requirements that have been established by the Board of Regents entitling the applicant to pay resident tuition fees.
September 23, 1964
EDUCATIONAL TELEVISION CONTRACTS
This is in reply to your letter wherein you request an opinion as to whether the State Board of Education in awarding a contract to a communications carrier for microwave connections between educational TV stations in Georgia, may enter into such contract by negotia-. tion or whether it will be necessary that the contract be awarded through advertisement and bidding. It is my understanding that only one communications carrier, Southern Bell Telephone and Telegraph Company, possesses the facilities and capabilities required under the contract. It is also my understanding from appropriate officials in

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the Department of Education that the contract does not contemplate the purchase of television equipment or facilities but is instead to be a service contract whereunder the carrier will provide for a microwave connection between educational services over its own facilities for a period of one year with renewal options in the State Board of Education.
It is my opinion that the State Board of Education has the legal power to enter into the above described contract with a communications carrier by direct negotiation and that it is not required to award the contract by advertisement and competitive bidding.
The general rule with respect to the purchase of "supplies, materials or equipment" is that such purchases must be made through the Supervisor of Purchases [see Georgia Code Ann. 40-1902, 401906.1], with such purchases generally being made by the Supervisor pursuant to advertisement and competitive bidding. See Georgia Code Ann. 40-1909, 40-1910. It is also the general rule that any contract of a department for the purchase of "supplies, materials, or equipment" which is not made through the Supervisor of Purchases is null and void, Georgia Code Ann. 40-1918. And the executive officer of the department making such unlawful purchase of "supplies, materials or equipment" is personally liable for the cost thereof. Georgia Code Ann. 40-1919. Certain exceptions to these general requirements do exist, however, such as the right, unless otherwise ordered by the Supervisor of Purchases, to purchase "technical instruments and supplies" without going through the Supervisor. Georgia Code Ann. 40-1916.
But while this exception (in the absence of any contrary order of the Supervisor of Purchases) could well be relied upon as applicable to the instant contract contemplated by the State Board of Education if this contract be construed as one for the purchase of tangible equipment or instruments to enable to Board itself to operate the microwave connections between its educational TV stations, a far more basic reason would seem to exist which would remove this contract from the provisions of the law relating to the Supervisor of Purchases. This is simply that such provisions all deal with the purchase of "supplies, materials or equipment." In the instant situation the contract is one which is in essence a service contract (i.e., the purchase of carrier service respecting TV communications) and in no way involves a purchase of "supplies, materials or equipment."
Furthermore, it would appear that the State Board of Education may well have authority to make purchases in connection with the production and/or transmission of television programs even should a purchase contract deal with "supplies, materials or equipment," rather than deal only with services, as in the present case. Georgia Laws 1963, pp. 431, 432 (Georgia Code Ann. 32-408.1) provides.:
"The State Board of Education is authorized and empowered to make available educational programs through the medium of educational television. The State Board of Education is authorized and empowered to own, operate, maintain and manage television stations, transmission equipment and

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all other related equipment and facilities, both audio and video, for the production and transmission of open and closed circuit telecasting; to furnish schedules, consultative services, teacher aids, and to perform all other things necessary in promulgating, furnishing, producing, transmitting, and making such programs available; and is authorized to enter into agreements with other agencies, persons, firms or corporations for the production and/or transmission of educational television programs."
The authority of the State Board to enter into contracts such as the instant one would seem clear under this provision (it may be noted that the statute contains no competitive bidding requirements), and in the event of conflict with earlier statutes pertaining to the Supervisor of Purchases this more recent expression of the General Assembly would control.
While my conclusion, for the above stated reasons, is that it is not necessary to proceed through the Supervisor of Purchases with respect to the proposed contract, it should be noted that it does not say that informing the Supervisor of Purchases of the transaction might not be a desirable course of action for the furtherance of a good working relationship. This, of course is a non-legal matter within the discretion of the State Board of Education.
September 28, 1964
HOSPITAL MEDICAL RECORDS
I am pleased to acknowledge receipt of your letter in which you ask my opinion as to the length of time a hospital should retain a patient's medical records and x-ray pictures, particulary considering the fact that litigation may arise at some time after the patient's release and such records might have value as evidence at such a time.
This is to advise that there is no State statute governing the preservation of hospital medical records or x-rays; nor has the Georgia Department of Public Health, which is authorized under the provisions 88-1902 and 88-1903 of the Georgia Code Annotated to promulgate rules and regulations governing hospitals and related institutions, adopted any such rules.
It clearly appears that the hospital record is maintained primarily for the use of the hospital and the medical staff in providing better patient care; thus the length of time a record should be retained should be determined on the basis of sound hospital and medical practice. However, in adopting the decision as to the period of record retention, the hospital should take into consideration a number of factors.
Records of adults may be needed within the four-year period of the statute of limitations as set out in Georgia Code Ann. 3-706, which deals with actions on an open account. Also, records of adults may

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be needed to collect hospital bills and to defend the hospital or its personnel against malpractice or negligence suits within the two-year period of the statute of limitations as set out in 3-1004 of the Georgia Code Annotated.
In the case of minors, the statute of limitations does not begin to run until the minor has reached the age of twenty-one years. It would be advisable to retain such record until the minor has attained the age of twenty-one years, plus the additional years provided by State law cited in the above paragraph in which to institute a suit for personal injuries.
It should be further noted that upon a cursory search of the case law dealing with this particular matter, I can find no cases which impose liability on a hospital for failure to retain hospital records or x-ray reports.
September 29, 196L1
OPINION TO THE GOVERNOR
I have your request for my opinion as to whether I feel it advisable for you to proceed with the advertisement of the new constitution or whether you should withhold advertisement in view of the pending litigation and injunction in the case of Fortson v. Toombs.
On June 30, 1964, by final order of the United States District Court for the Northern District of Georgia, Atlanta Division, in the abovementioned case, it was ordered, adjudged, and decreed, in part, that:
"(2) The defendants are hereby enjoined from placing on the ballot to be used in the General Election to be held on November 3, 1964, or at any subsequent election until the General Assembly is reapportioned in accordance with constitutional standards, the question whether a constitutional amendment purporting to amend the present state constitution by substituting an entirely new constitution therefor shall be adopted; ...."
This case is now in the Supreme Court of the United States for the October Term, 1964.
Article XIII, Section I of the Georgia Constitution (Georgia Code Ann. 2-8101), provides in part as follows:
"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

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amendment is submitted, in one newspaper of general circulation in each Congressional District of the State."
Regardless of the highly important contingencies which are in volved in determining your course of action, such as the affirmance or reversal of the District Court decision, the legality of the expenditure for the advertising, and meeting time requirements with respect to placing the new constitution on the ballot, the immediate and controlling question which must be answered is whether or not the publication of the new constitution would be in violation of the District Court's order and injunction prohibiting the placing of the new constitution on the ballot. The resolution adopted by the General Assembly in which the revised constitution of Georgia is proposed as an amendment to the Constitution contains in the caption to said resolution (Georgia Laws 1964, Extra Session, page 235), the following:
"to provide for the submission of this amendment, as one amendment, to the qualified voters of the State of Georgia for ratification or rejection at the general election to be held in November, 1964." [Emphasis added]
In the body of said resolution, under Article IX, Section II (Georgia Laws 1964, Extra Session, page 333), it is provided as follows:
"that when this amendment shall have been agreed to by two-thirds of the members elected to each of the two Houses of the General Assembly, the same shall be entered on their journals with the 'ayes' and 'nays' taken thereon and shall be published and submitted to the people for ratification or rejection as one single amendment to the Constitution at the next General Election in November, 1964, as provided by law...." [Emphasis added]
Presuming the constitutionality of that portion of the proposed amendment to the Constitution dealing with submission of the amendment, "submission" must include publication.
In any event, it is my opinion that any act that is necessary to, and inseparably connected with the "placing on the ballot" of an amendment, is an integral part of the process of "submission" or "placing on the ballot."
Since publication of a proposed amendment is directly connected with and necessary to the placing on the ballot of a proposed amendment to the Constitution, it is my official opinion that you are prohibited by the final order of the United States District Court for the Northern District of Georgia, Atlanta Division, entered on June 30, 1964, from causing such proposed amendment to be published as required by the provisions of the State Constitution and I must advise you not to proceed with the advertisement of the proposed new constitution of the State of Georgia.

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September 29, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you request my opinion on certain questions posed in an attachment to your letter.
The facts and questions as set out in the attachment are these:
A national bank transferred to a non-exempt building and loan association a long term note secured by real estate in the amount of $12,000. At the time of transfer the instrument showed a payment of $2,000 and a balance due thereon of $10,000. The questions asked are:
(a) Inasmuch as the national bank was the original payee of the note, and exempt from the tax on long term notes secured by real estate at the time the instrument was recorded (as it has been held by a previous opinion of this office), is the transferee, the nonexempt building and loan association, subject to the "recording tax" (Georgia Code Ann. 92-164) on the long term note secured by real estate which it now owns as transferee; and
(b) If the non-exempt building and loan association is subject to the aforesaid tax, is the tax payable on $12,000. the original amount of the instrument, or on $10,000, the balance due on the instrument at the time of transfer?
The immunity of the national bank to the tax on the long term note secured by real estate did not attach itself to the instrument. When the non-exempt building and loan association became the owner and holder of this instrument as transferee, it thereby became liable under the Georgia law for the tax on long term notes secured by real estate, either at the time of recording the instrument in accordance with the provisions of 92-164 or, if the "recording tax" (as provided by 92-164) is not paid, then the long term note secured by real estate is taxable under the provisions of 92-178.
In my opinion the building and loan association would be liable for the "recording tax" provided by 92-164 on the amount of the instrument at the time of the transfer ($10,000). To assess a tax on the $2,000 shown to have been paid on the instrument while the same was held by the national bank, in my opinion, would be an attempt to pierce the immunity of the national bank.
September 29, 1964
OPINION TO THE DEPARTMENT OF REVENUE
You have requested my written opinion as to your authority to check the weight of a vehicle for the purpose of enforcing the motor vehicle registration laws.

606
There has recently been a great deal of confusion in this area due to certain misunderstandings about the holding of the Georgia Supreme Court in the case of Aldrich v. State, 220 Ga. 132 (1964). In that case the Supreme Court was concerned with a defendant who was charged with a violation of Georgia Laws 1960, p. 1112, 1123 (Georgia Code Annotated 68-406.2). That Act made it a crime for a truck driver to refuse to drive his vehicle upon the scales when directed to do so by a law enforcement officer who was enforcing the vehicle weight laws. Because the vehicle weight laws make it a crime to operate a truck over the limits (Georgia Laws 1941, p. 449; 1951, p. 772; 1955, p. 392; 1956, p. 383; and 1959, p. 27), the provisions of law under which the defendant Aldrich was charged were held to be unconstitutional because it required the defendant to give evidence against himself, which is prohibited by Article I, Section I, Paragraph VI, of the 1945 Constitution of the State of Georgia.
The holding in the Aldrich case does not restrict your authority to weigh vehicles for the purpose of enforcing the motor vehicle registration laws. 'rhe obligation imposed on vehicle owners by the motor vehicle registration laws is a civil, not a criminal, matter. The privilege self-incrimination has no application to purely civil matters as opposed to criminal prosecutions. Article I, Section I, Paragraph VI, of the 1945 Constitution of the State of Georgia. In re Strouse, 23 Fed. Cas. No. 13, 548 (D. C. Nev. 1871) ; U. S. v. Noble, 19 F. Supp. 527 (W. D. N. Y. 1937) ; 47 C. J. S. Internal Revenue 672 (1946). This concept is certainly not new. Every time an income tax return is filed the taxpayer is giving evidence against himself. However, because of the civil nature of the proceedings there is no constitutional prohibition.
Georgia Laws 1937-38, Extra Session, pp. 77, 81, provides:
"In the performance of his duties, the Commissioner, or any agent designated by him in writing, shall have the power to administer oaths, to conduct hearings, to examine witnesses under oath, and subject to the rights of the taxpayer as to rights of privacy guaranteed to him by the Constitution and laws of the State to examine the books, records, inventories, or business of any taxpayer or of any fiduciary, bailee, or other person having knowledge of the tax liability of any taxpayer: ...." (Georgia Code Annotated 92-8408)
Under this provision, which empowers you to examine the "business of any taxpayer," you apparently have the authority to examine the weight of vehicles to determine if the motor vehicle registration laws have been complied with.
Georgia Laws 1937-38, Extra Session, pp. 77, 96, provides:
"If any individual, corporation, partnership, or fiduciary, or any officer, agent, employee, or member of a partnership, required under the law to make any return, supply any information, or exhibit any books or records, when requested to do so by the Commissioner or any agent designated in writing by the Commissioner, whether with reference to his own return or not, shall refuse to do so, the superior court for the county

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in which such person resides shall have jurisdiction by appropriate process to collect such testimony or cause the proper person to produce such books, papers, or other data."
Under this provision of the law you are apparently empowered to go into the superior court and secure an order directing a motor vehicle owner to produce his truck for a proper weight examination. However, when an inspector has a truck stopped on the side of the road for the purpose of checking the weight to determine if the truck bears the proper motor vehicle license plate, it is impractical to expect the inspector to secure such an order.
In such a situation where the vehicle operator refuses to cooperate, you may proceed under the provisions of Georgia Laws 1937-38, Extra Session, pp. 77, 97, and immediately issue a jeopardy assessment and proceed thereunder to collect the tax due (Georgia Code Ann. 928441).
September 29, 1964
OPINION TO THE DEPARTMENT OF REVENUE
Your have requested my official opinion on the following question: "Can the Motor Vehicle Unit accept personal checks in payment for license plates and fees?"
Prior to 1960 there were two Acts dealing with the subject of payment of taxes and the purchase of motor vehicle license plates. The first Act is found in 92-5706 of the Georgia Code of 1933 and provides:
"Taxes shall be paid in lawful money of the United States, free of any expense to the State."
The second Act is found in 68-208 of the Georgia Code of 1933 and provides :
"Where an application for license tags and certificates shall be made to the State Revenue Commissioner it shall be accompanied by cash, cashier's check, postal money order, or express money order for the license fee required by law. Money order receipts for the proper fee shall entitle the applicant to the use and operation of the motor vehicle sought to be licensed and registered for a period of 15 days from the date of said remittance."
Section 68-208 was amended in the 1960 Session of the General Assembly, and the following was substituted:
"When an application for a license tag and certificate is made to the State Revenue Commissioner, or to the County Tag Agent, it shall be accompanied by cash, or certified or cashier's check, or bank, postal or express money order, or other similar bankable paper, for the amount of the license fee

608
required by law. A money order receipt, or other evidence of the purchase and remittance of such bankable paper, for the proper amount, dated prior to any delinquency by the proper authority of the issuer, and showing the State Revenue Commissioner or his county tag agent as the payee, and the owner of the vehicle sought to be licensed and registered as the remitter, shall serve as a temporary permit to operate such vehicle for a period of 15 days from the date of such remittance." Georgia Laws 1960, p. 943 (Georgia Code Annotated 68-208)
The same General Assembly in 1960 passed an Act dealing with the payment of taxes and license fees by checks or money orders. That Act provides in part:
"The State Revenue Commissioner is authorized to receive in payment of taxes and license fees, personal, company, certified, treasurer's and cashier's checks and bank, postal, and express money orders to the extent and under the conditions which he may prescribe by regulations or instruction...." Georgia Laws 1960, p. 211 (Georgia Code Annotated 92-6405)
As you can see, 68-208 does not specifically mention personal checks. However, the Act does provide that "other similar bankable paper" shall accompany such applications. The second Act, as you can also see, specifically provides that the State Revenue Commissioner is authorized to receive personal and company checks in payment of taxes and license fees. The answer to your question requires a consideration of and a construction of all of these sections of the law.
When construing Georgia Code Ann. 68-208 and specifically the words "or other similar bankable paper", the legal rule of ejusdem generis would normally be applied and these words would be restricted to the same generis as those words preceding the phrase. However, the case of Standard Oil Co. v. Swanson, 121 Ga. 412 (1904), at page 415, held:
"This rule (speaking of ejusdem generis) is not inflexible. . . ."
Indeed the cardinal rule of construction of legislative enactments is to ascertain the true intention of the General Assembly, and this may be derived from a consideration of the old law, the evil to be corrected, and the remedy. See Board of Tax Assessors v. Catledge, 173 Ga. 656 (1931) ; 'l'he Texas Company v. Cason, 56 Ga. App. 836, 839 (1937).
The case of Ryan v. Commissioners, 203 Ga. 730 (1948), held at page 731:
"It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject matter, briefly called statutes 'in pari materia' are construed together, and harmonized wherever possible, so as to ascertain

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the legislative intent and give effect thereto...." Citing Georgia Code of 1933, 102-102.
The two statutes here under consideration were both enacted in the same session of the General Assembly, and this fact is additional justification for construing the two Acts together.
Applying these rules of construction the conclusion is reached that the Legislature intended that the two Acts passed in the 1960 Session of the General Assembly be construed together. When so construed, the words "or other similar bankable paper" found in 68-208 will include personal and company checks as provided in the other Act, Georgia Code Ann. 92-6405. Such checks of course can only be accepted as payment for motor vehicle license fees subject to all the qualifications found in 92-6405 of the Georgia Code Annotated.
The same rules of construction would require these two Acts to be construed in the light of 92-5706 of the Georgia Code of 1933. That Section is a codification of an 1804 Act and an 1851 Act. As such it evidences a public policy of long standing. I believe that the words "free of any expense to the State" found in 92-5706 of the Code further restrict the term "bankable paper" found in the new amended 68-208 of the Code, in that this provision would prohibit accepting post-dated checks, checks drawn on non-par banks, and any check which is so qualified or conditioned that an expense to the State would necessarily be incurred.
I am of the opinion that the construction thus applied to the three Code sections will harmonize and give effect to all of the sections.
September 29, 1964
CRIMINAL COURT COSTS
I appreciated your letter, and will be happy to answer your questions concerning costs and fees due in criminal cases of nolle prosequi and when no bills are returned by grand juries.
You first asked for an example of the costs which would be chargeable against a defendant when a criminal case is nolle prossed upon payment of costs. Nolle P'rosequi is a withdrawal of prosecution of an offense by the solicitor under authority of Georgia Code Ann. 24-2915, done with the consent of the court pursuant to 27-801. The costs which would be due a solicitor when a case is nolle prossed are the fees provided in Code Section 24-2904 - $5.00 for each person indicted and a fee of 25 for entering a nolle prosequi. The fees due a solicitor could not include any monies for gaming offenses, as 24-2905 specifically excludes any fees for gaming when the indictment is entered nolle prosequi.
The clerk of court, by 24-2727, is entitled to receive $4.00 for his services in docketing and entering a bill of indictment or presentment

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on the minutes in cases of nolle prosequi, and also (according to the position taken by most, if not all, clerks) $9.00 for services in cases "where the defendant is tried, or pleads guilty, or there is a settlement." This latter fee would certainly seem applicable in a situation whereby the nolle prosequi was contingent upon payment of costs.
The amount of fees which would be due a sheriff would be those enumerated under 24-2823. These could include, where applicable, an arrest fee of $6.00, a fee of $4.00 for taking bond in criminal cases, a fee of $3.00 for services in every criminal case before a judge or judge and jury, turn-key fees of $1.00 on receipt and $1.00 on discharge, and perhaps other fees, depending upon the circumstances of the individual case.
It would seem the amount of costs actually assessed would probably in most cases be an amount the solicitor thought the defendant could and would be willing to pay, and which would be approved by the judge, but all the above would be legally justifiable for assessment as costs. In addition, it would seem the amount due the Peace Officers Annuity and Benefit Fund (Georgia Code Ann. 78-909) should also be included, as those monies are to be paid whenever a "fine, which shall be construed to include costs, is collected . . . ." (Emphasis added) The intent of the added phrase "to include costs" indicates the monies are to be paid whenever costs are collected, whether as part of a fine, bond, or as a result of a settlement and nolle prosequi.
You next asked what fees each officer of the court would be entitled to recover in the event an insolvent case might be nolle prossed. It would seem the same costs were assessable. However, in the case of felonies, there are two Code sections to keep in mind: Section 24-2731, providing for unpaid costs due clerks from services rendered in felony cases to be paid from county funds; and 24-2823, providing that all costs due sheriffs for services arising from services rendered in felony cases shall be paid from county funds. Both sections apply whether the defendant is convicted or acquitted, and disposal of a case by settlement in the nature of nolle prosequi should not defeat any right to fees due an officer. Of course the county, if it paid the' officer from county funds, would become subrogated to the officer's right of participation against any insolvent costs or funds. See Georgia Code Ann. 27-2920.
You then asked whether a "no bill" may be placed on the costs bill when returned by only one grand jury, or should it be presented the second time before considered final. You also wished to know what each officer of the court was entitled to receive for a no bill. The solicitor, under 24-2904, would appear to be entitled to the sum of $5.00 for "every bill of indictment ignored by [the] grand jury," or $5.00 for "each person indicted or presented [for indictment]." Under 24-2727, the clerk is entitled to a fee of $3.00 for the entering of a no bill. Sheriffs would seem entitled to whatever fees had accrued- probably arrest fees, and perhaps bond or turnkey fees. If the matter were presented to the grand jury for indictment a second time, after having been returned as a no bill previously, the solicitor and clerk would seem entitled to their fees for this service the same as if it were a totally new matter. There could be no

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further presentation because of 27-702, making two returns of no bills a bar to further prosecution.
Your last question was whether the Sheriffs' Retirement contribution should be included in computing the costs which a subject must pay. Section 10 of the Sheriffs' Retirement Act (Georgia Code Ann. 24-2810a) provides that in every case in which a fine is collected or bond forfeited and collected in the amount of $5.00 or more, including costs, the sum of $1.50 is allocated to Sheriffs' Retirement. As I interpret this language, if all other costs and fees came to at least $3.50, so that the additional $1.50 for Sheriffs' Retirement would make a total of $5.00 or more, then it should be added and included. Otherwise there might be an insufficiency to meet all assessments against the monies collected. This same point should also be considered in connection with the Clerks' Retirement Fund costs (Georgia Code Ann. 24-2739) and the Peace Officers' costs (Georgia Code Ann. 78-909). In fact, costs for these three funds alone would come to $5.00.
You might also make reference to the Opinions of the Attorney General for past years, in which I have published several opinions dealing with fees and costs. Among those which I think would be of interest are: Ops. Att'y Gen., 79, 82, 85, 121, and 126 (1962) ; Ops. Att'y Gen., 98 and 99 (1960-61); Ops. Att'y Gen., 42, 44, 45, 46, 47, and 70 (1958-59) ; Ops. Att'y Gen., 39, 47, 48, 49, 51, 75, 76, 234, and 235 (1957) ; Ops. Att'y Gen., 113, 115, 118, and 119 (1954-56). Also opinions touching upon costs due retirement funds are the Ops. Att'y Gen., 1957, page 229.
September 29, 1964
SHERIFFS
In your recent letter you stated some conflict had arisen whether House Bill 1062, passed by the 1964 Legislative Session (Georgia Laws 1964, p. 310), directing that all sheriffs of the various counties be compensated by salary after March 1, 1966, would affect the office of Sheriff of the City Court of Buford.
In making reference to the position of sheriff, there is often a failure to designate or make any distinction between sheriffs of the superior courts or sheriffs of city courts; however, the general terminology in usage of the phrase "county sheriff" or "sheriff of the county" is intended as a reference to the sheriff of the superior court of that county. See for example Chapter 24-28 Georgia Code Annotated, pertaining to sheriffs of the superior courts, in which repeated reference is made to the "county sheriff;" i.e., 24-2803 - "sheriff of any adjoining county;" 24-2804 - "sheriff of this county" (oath of office); 24-2825 - "sheriff of every county."
We also have the distinction made in some cases which have been adjudicated, among which are Collins v. Russell, 107 Ga. 423 (1899),

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which held the sheriff and clerk of the City Court of Savannah were not county officers; and Williams, et al., v. Ellis, et al., 22 Ga. App. 673 (1918) made the distinction between the sheriff of a city court and the sheriff of a county.
The language used in Act No. 783 is "sheriffs of the various counties," and in my opinion this was intended to relate solely to sheriffs of the superior courts such as are provided for in Chapter 24-28 of the Georgia Code Annotated, and was not intendend to affect sheriffs of the various city courts in the State.
October 5, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you request an opinion as to whether the provisions of Georgia Code Ann. 40-1916 permit the purchase of educational sound films for the Audio-Visual Library of the State Department of Education directly, rather than through the State Supervisor of Purchases. In your letter you point out that such films are one of a kind and available only from one source, being analogous to library books in this respect.
It is my opinion that unless the Supervisor of Purchases has otherwise ordered, the purchase of educational sound film for the AudioVisual Library of the State Department of Education is not required by law to be routed through said Supervisor of Purchases.
Georgia Code Ann. 40-1916 provides:
"Unless otherwise ordered by the Supervisor of Purchases, the purchase of supplies, materials, and equipment through the Supervisor of Purchases shall not be mandatory in the following cases:
(a) Technical instruments and supplies and technical books and other printed matter on technical subjects; also manuscripts, maps, books, pamphlets and periodicals for use of the state library or any other library in the State supported in whole or in part by State funds." (Emphasis added)
It would appear that inasmuch as the educational sound film you mention is "one of a kind" and available from only one source, it could legally be treated as a "technical supply," especially in view of a rather strong indication in the letter portion of the above quoted provision, of a legislative intent that library materials of the same general nature not be included among those items which must be purchased through the Supervisor of Purchases.
While your letter also suggests the possibility that 40-1916 (d) (which absolutely exempts school textbooks from the provisions of the chapter relating to the Supervisor of Purchases) is applicable, I do not feel that this provision is relevant, the reason being that I rather doubt that a court would be willing to give the term "textbook"

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such a broad definition as would include "sound film." Words in a statute are generally construed according to their ordinary meaning, Georgia Code Ann. 102-102 (1), and the term "textbook," in its ordinary sense, refers to a "book" used as a standard work or basis of instruction in any branch of knowledge. Funk & Wagnalls, New Desk Standard Dictionary, "textbook," p. 791.
October 5, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you request an opmwn as to whether or not it is legal for a county board of education to "invest"1 funds which are temporarily idle in a federal savings and loan association. My opinion and the reasons therefor are as follows:
In my opinion it is legal for a county board of education to invest any county school funds which are surplus or temporarily idle in either a federal or a state-chartered savings and loan association, provided that and to the extent that such association is insured by the Federal Savings and Loan Insurance Corporation. The maximum amount of such insurance is currently fixed by federal statute at $10,000.00 for each insured account.
Georgia Code Ann. 16-437 (which has recently been reenacted by the General Assembly, see Georgia Laws 1964, p. 194) provides:
"Administrators, executors, guardians, trustees, and other fiduciaries of every kind and nature, insurance companies, charitable, educational, eleemosynary and public corporations and organizations, and municipalities and other public corporations and bodies, and public officials are authorized to invest funds held by them without any order of any court in accounts and certificates of state-chartered associations and federal savings and loan associations, which are insured by Federal Saving and Loan Insurance Corporation, and, to the extent of such insurance and such investments, shall be deemed and held to be legal investments for such funds." (Emphasis added)
In January, 1964, in an official opinion addressed to Honorable Ben W. Fortson, Jr., I concluded that the above statutory provision authorizes municipalities, public bodies and public officers to invest public funds in their custody in such savings and loan associations.
1. Although your letter actually requests an opinion as to whether the local board may "deposit" such funds in a Federal Savings and Loan Association, I assume that inasmuch as technically neither a federal nor a state-chartered savings and loan association can accept "deposits" of money, see 12 U.S.C.A. 1464 (b) and Georgia Code Ann. 16-402, you refer to the legality of an "investment" of the public school funds in such associations.

614

The position that this section authorizes the investment of surplus

or temporarily idle school funds in savings and loan associations

insured by the Federal Savings and Loan Insurance Corporation would

also seem to be strengthened by another enactment of the last session

of the General Assembly. See Georgia Laws 1964, pp. 741-42. This

second new statutory provision states:

,

"The governing body of a municipality, county, school district, or other local governmental unit or political body, in addition to all other legal investrnents2, may invest and reinvest money subject to its control and jurisdiction in:

(a) Obligations of the United States and of its agencies and instrumentalities;

(b) Bonds or certificates of indebedness of this state and of its agencies and instrumentalities; provided, however, that the provisions of this Act shall not
impair the power of a municipality, county, school district or other local governmental unit or political subdivision to hold funds in deposit accounts with banking institutions as otherwise authorized by law." (Emphasis added)

In view of the foregoing, I am of the opinion that it is legal for
county school boards to invest any surplus or temporarily idle school funds in either federal or state-chartered savings and loan associations provided that and to the extent that the account is insured by the Federal Savings and Loan Insurance Corporation.

October 7, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
This will acknowledge receipt of your letter requesting my opinion on whether the claim of Tison Sons of Savannah against Dixico Company of College Park for materials supplied by Tison to Dixico for use in construction at Savannah State College is recoverable from the Regents in the absence of payment by Dixico; also, whether the individual Board Members could be held personally liable if payment is made, but such payment should be determined at a later date to have been erroneous.
It is my opinion that the materialman, under the facts as stated, has a valid claim against the Regents for materials furnished, and should be paid.
An examination of the facts shows that (1) Dixico Company was not required by any state official to secure a payment bond for
2. Such other "legal investments" manifestly referring to and including those mentioned by statute (i.e., Georgia Code Ann. 16437; Georgia Laws 1964, p. 194).

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the protection of subcontractors and materialmen as required under Georgia Code Ann. 23-1705, 23-1706; (2) the work was completed by Dixico and it was paid in full by the College, but before furnishing a sworn affidavit that all materialmen had been paid; (3) that Tison Sons was, in fact, not paid for materials furnished and that demands for such payment have been refused; and (4) that Dixico Company filed a petition in bankruptcy claiming no distributable assets.
Georgia Code Ann. 23-1705 places upon the College or the Regents the responsibility for obtaining from the contractor a payment bond for the use and protection of all subcontractors and materialmen furnishing labor or materials toward the completion of the prime contractor's contract.
Georgia Code Ann. 23-1706 provides as follows:
"If such payment bond, together with affidavit when necessary, shall not be taken in manner and form as herein required, the corporation or body for which work is done under the contracts, shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery or materials to the contractor or subcontractor thereunder, for any loss resulting to them from such failure." (Georgia Laws 1916, p. 95; 1956, pp. 340, 341).
It has been uniformly held by the courts of this State that the political body contracting for the doing of any public work shall be liable to any subcontractor or materialman who is financially injured as a direct result of the body's failure to require that the statutory bond be taken out by the contractor. Eatonton Oil and Auto Co. v. Greene County 181 Ga. 47, 181 S.E. 758 (1935) ; Ty Ty Consolidated School Dist. v. Colquitt, 153 Ga. 426, 112 S.E. 561 (1922); Greene County v. Carr Co., 47 Ga. App. 752, 171 S.E. 401 (1933) ; Sinclair Refining Co. v. Colquitt County, 42 Ga. App. 718, 157 S.E. 358 (1931). It matters not that the public body has completely satisfied its con. tract with the prime contractor.
Therefore, it is my opinion that the Regents should make prompt payment of any valid claims submitted by Tison Sons. Before making payment, however, the Regents should require that an affidavit be submitted by Tison Sons showing that the loss resulted from a failure of the Regents or their agents to take from the contractor the bond required by law, Eatonton Oil and Auto Co. v. Green County, supra; that Dixico Company is insolvent or out of business, Hackman v. Fulton County, 77 Ga. App. 410, 48 S.E. 2d 706 (1948) ; that the debt owed to Tison Sons has not been paid, Sinclair Refining Co. v. Colquitt County, supra; and that the material furnished went into. the construction of the public work. The affidavit should also contain an itemized statement of materials furnished and the portion of the costs remaining unpaid by reason of the insolvency.
Although strict proof of the requisite facts should be required, I can foresee no personal liability accruing to the individual members of the Board for authorizing the payment of the claim under the circumstances outlined above.

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It is well settled in Georgia that before a public officer is justified in paying out public money, those who demand its payment should be able to show a clear provision of the law which entitles them to receive it. Freeney v. Geoghegan, 177 Ga. 142, 169 S.E. 822 (1933); Armistead v. MacNeill, 203 Ga. 204, 45 S.E. 2d 652 (1947) ; Cole v. Foster, 207 Ga. 416, 61 S.E. 2d 814 (1950). It is my opinion that Georgia Code Ann. 23-1706 provides a clear mandate directing payment of the claim.
In the event that it should be later ascertained that payment should not have been made, I can foresee no personal liability to the Board members, as it is generally established that "mistakes of judgment, or improper construction of the law defining his duties, by a public officer acting in the discharge of his oficial duties do not give rise to a personal action against him. . . ." 67 C. J. S. Officers 125 (1950). It has been held in other states that an "official, acting with due care under counsel's advice in discharge of public trust, is not liable for mistaking cause." Lincoln Bus Co. v. Jersey Mut. Cas. Ins. Co.., 162 Atl. 915, 10 N.J. Misc. 114 (1932). If the Georgia courts are in agreement with the above holding, this opinion would appear to provide additional insulation from personal liability.
In conclusion, it is my opinion that when the above requirements have been met and the validity of the claims has been established, the Regents should make prompt payment of the claim as required by law.
October 9, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I have for acknowledgment your letter in which you state that the State Board of Health has expressed its concern over the failure to collect all monies legally due the Georgia Department of Public Health from patients, or from those responsible for patients, in your institutions as provided in Georgia Laws 1960, Act No. 911.
You state further that the State Board of Health has asked that you exert every effort, including court action if necessary, to collect the full amount due. You have requested my advice as to the best way of approaching the problem in order that you may seek to collect funds now being refused.
As you will recall, since the enactment of the Cost of Care Bill in 1960, we have all been aware of certain imperfections within the Act and we have recognized that it contains areas that are not as clear or specific as they might have been in order completely and effectively to implement the provisions of the law by your department.
You will further recall that for more than three years various legislative committees, committees from the Department of Public Health and Assistant Attorneys General have worked toward perfecting the Cost of Care Bill.

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Your department, according to our understanding, has operated under the provisions of the 1960 Cost of Care Law on the basis, first, of making a determination of ability to pay and obtaining voluntary payments wherever possible; and, in those cases where legal objections have been interposed by patients or persons "legally liable for cost of care for patients," the claims for payments have not been pressed to the extent of bringing law suits.
This policy has been pursued with the result that substantial amounts of money have been collected by the State of Georgia, aggregating over two million dollars. I am advised that since the implementation of this law by your department the total of uncollected accounts amounts to seventy thousand dollars.
In my opinion your department has done an exemplary job in collecting under the Cost of Care Law. In view of the fact that your department is given authority to negotiate settlements of accounts payable, and in view of the multitude of types of cases that may arise under the law, I cannot advise you as a general policy immediately to file suit for the collection of all unpaid accounts.
I would suggest that you have Mr. Power of your department go over each of the unpaid accounts with my assistants assigned to handle the legal work for your department so that each case could be considered and handled on its own merits.
I must point out to you that there are certain areas which need to be strengthened in the present law under which you are operating. Considerable public ill-will would be engendered by the wholesale filing of law suits to collect these unpaid accounts under the present law. In view of the imminence of the convening of the next session of the Legislature, I recommend the drafting of a perfected Cost of Care Law for submission to the General Assembly.
In the meantime, it is my opinion that you should continue to pursue the policy you have been following with respect to collections.
October 9, 1964
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I have your letter on which you advise that on September 3 the Water Quality Control Board, under the authority of Section 5, subsection (9) of the Water Quality Control Act, adopted several rules and regulations it deemed necessary for proper administration of the Water Quality Control Act.
You state that the aforesaid subsection provides that such rules and regulations are to be promulgated jointly by the Georgia Water Quality Control Board and the Department of Public Health. You have requested my advise as to the type of action which should be taken by the State Board of Health in order that these rules and regulations may be legally promulgated.

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Section 5, subsection (9) of the Water Quality Control Board Act provides that the Board may
"Adopt rules and regulations it deems necessary for the proper administration of this Act, which rules and regulations shall be promulgated jointly by the Water Quality Control Board and the Department of Public Health. Such rules and regulations shall contain a date on which they are to become effective, and on such date they shall become effective and have the force and effect of law. Copies of such rules and regulations shall be made available to the public."
It is my opinion that the law provides for the adoption of rules and regulations solely by the Water Quality Control Board, and that the only connection the Department of Public Health has with such rules and regulations is that it may participate in the joint promulgation of them. I am of the opinion that it is not necessary for the State Board of Health to adopt such rules and regulations in accordance with the procedures provided for in Chapter 3 of the Public Health Code.
"Promulgation" is defined in Webster's Dictionary as
"Promulgate . . . 2. Law. (a) To make known or public the terms of (a proposed law). (b) To issue or give out (a law) by way of putting it into execution.- Syn. See Declare. - promulgation, noun."
"Declare . . . 1. To make known explicitly; proclaim; announce. 2. To manifest; show. 3. To assert openly; affirm.... "
For the Department of Public Health to participate in a joint promulgation of rules and regulations, it is inescapable that such participation must imply assent, concurrence, or affirmation. The provisions of Section 5, subsection (9), dealing with joint promulgation are meaningless without the implication of at least acknowledgment and concurrence. In the event that the State Board of Public Health should refuse to assent to some rule or regulation that had been adopted by the Water Quality Control Board, joint promulgation thereof would be impossible until the dissent of the State Board of Health could be resolved in conference with the Water Quality Control Board.
October 9, 1964
CORPORATE CHARTERS
This will acknowledge receipt of a copy of the Petition for Amendment of Charter of American Agency Life Insurance Company along with your letter requesting that I review it and give you my opinion as to whether or not the Amendment will enable the Company to comply with the applicable insurance laws of this State.

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I have reviewed the petition and note that it does not state the city or town and county in this State in which is located its principal place of business as required by 56-1509 (a) of the Insurance Code. I also note that the certificate required by 56-1509(c) of the Code does not state that at least ten days prior notice was given to the stockholders of the proposal to amend as is required by this section. As an alternative this provision provides that the certificate may set forth that the Amendment has been authorized in writing by the
holders of a majority of the voting power of the outstanding capital
stock.
Nevertheless, the charter amendment, if granted, will enable the American Agency Life Insurance Company to comply with the insurance laws of this State.
October 13, 1964
OPINION TO THE DEPARTMENT OF DEFENSE
I am pleased to acknowledge receipt of your recent letter in which you ask whether or not certain employees of your Department whose salaries are paid in full by the Federal Gov.ernment may participate in a group health and hospitalization program under the provisions of Public Law No. 87-224 (75 Stat. 496, 5 U.S.C. 84[d] ), as amended, and Executive Order No. 10996 dated February 19, 1962.
Public Law No. 87-224 authorizes a deduction to be made on payrolls of National Guard technicians in the amount of the contribution by technicians to a "State Group Life Insurance Program or to a Group Life or Group Health Program sponsored by a State." The law further provides that evidence showing such program to be statesponsored may be in the form of an opinion of the Attorney General of the state expressly holding that the Adjutant General has authority to act in the matter and that the program is state-sponsored within the meaning of Public Law No. 87-224.
In order for withholdings to be made for such a state-sponsored plan, the state must enter into an agreement with the Secretary of Defense. Although the Act provides for payment of deductions to state officials; the National Guard Bureau is allowed to approve agreements providing for payment to the carrier.
I am enclosing herewith a copy of an Agreement suitable for execution between a state government and the Federal Government, whereby provision is made for payments directly to the Administrator, National Guard Association of the United States Insurance Trust.
It is provided in Georgia Code Ann 86-201, 86-202 the following authorities of the Adjutant General:
"86-201. Department of Defense.-There shall be an agency of the State Government to be known as the Department of Defense of the State of Georgia, which shall be composed of the military agency as provided in the laws of this State, and

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the civil defense agency as provided in the laws of this State. The Adjutant General shall be the executive head of the Department of Defense. The term 'Department of Defense' shall include the term 'Department of Public Defense' whenever the letter appears in the laws of this State."
"82-202. Military Division.-There shall be within the Department of Defense as a division thereof, a State military agency, which shall be styled and known as the 'Military Division, Department of Defense,' with the Adjutant General as the executive head thereof. The term 'Military Division' shall include the term 'Military Department,' wherever the latter now appears in the laws of this State."
It is further provided in Georgia Code Ann. 86-205, inter alia, that the Adjutant General shall further perform such duties pertaining to his office as from time to time may be provided by the laws, rules and regulations of the United States and such as may be designated by the Governor.
The Adjutant General, therefore, is vested with full control and authority over the affairs and employees of the Military Division, Department of Defense of the State of Georgia, and it is my opinion that he has full authority to enter into an agreement such as the one attached hereto with the United States Department of Defense. This Agreement will allow those National Guard technicians of the Military Department of the State of Georgia whose salaries are paid in full by the United States Government to participate in a group health and hospitalization program similar to the one now in effect for other employees of said Department, so long as the contributions to such a plan are solely those of the employee, thereby bringing the program within the definition of a "state-sponsored program" as provided in Public Law No. 87-224 (75 Stat. 496, 5 U.S.C. 84[d]), as amended, and Executive Order No. 10996 dated February 19, 1962.
October 13, 1964
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
I am in receipt of your letter inquiring as to your having to produce certain records of the Department of Industry and Trade for inspection by members of the press or other interested parties.
In Georgia Laws 1959, page 88, there is set forth the so-called "open records law" which provides in part as follows:
"All State, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen."

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From the foregoing, it appears that unless there is some statutory law or court order in effect specifically exempting certain records of your department from reasonable public inspection, all of your records are subject to such inspection upon reasonable request therefor. Our examination of the laws relative to the Department of Industry and Trade has not produced any evidnce of the existence of a law or court order exempting your records from inspection.
October 13, 1964
JUSTICES OF THE PEACE
You asked if it were permissible by law for a person serving as deputy sheriff also to hold the position of ex-officio justice of the peace, having been recently appointed as such by the grand jury.
I believe you have in mind 89-103 of the Georgia Code of 1933, which states:
"No person shall hold, in any manner whatever, or be commissioned to hold at any 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."
This section is part of Title 89, "Public Officers and Employees."
I find no cases which have construed Section 89-103 insofar as they might pertain to ex-officio justices of the peace and deputy sheriffs, but believe Overton v. Gandy, 170 Ga. 562 (1930), which construed Section 258, Paragraph 7, of the Civil Code of 1910 (contained in the present Code of 1933 as 89-101, Paragraph 7), which reads: "No person shall be eligible to hold any county office in any county..." (Emphasis added) is applicable. In that case the question arose as to whether an ex-officio justice of the peace was a county officer as would come within the meaning of the statute. On pages 564 and 565 the court discussed the office of notary public ex-officio justice of the peace, and stated: "We accordingly hold that a notary public ex-officio justice of the peace is not a county officer." (Emphasis added)
In addition to this exempting of notary publics ex-officio justices of the peace, it is doubtful that deputy sheriffs would even be included within the offices intended for coverage under 89-103. While there has been an apparent divergence of opinion regarding the true status of the office of deputy sheriff, the weight of authority and latest pronouncements seem to be that they are not county officers. See Employees' Retirement System v. Lewis, Commissioner, Et. AI., 109 Ga. App. 476 (1964).

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October 14, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I wish to acknowledge receipt of your letter requesting that we examine the Georgia Administrative Procedure Act and advise you if the Regents of the University System of Georgia come within the provisions of said Act.
The Georgia Administrative Procedure Act is set out at Georgia Laws 1964, page 338. Section 2 deals with definitions, and subsection
(a) of that section, defines "Agency" as follows:
"'Agency' means each state board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases except the General Assembly, the judiciary, ... the regulation of ..., or any school, college, hospital or other such educational eleemosynary or charitable institution, ...." Section 2., subsection (f), defines "Rule" as follows:
" 'Rule' means each agency regulation, standard or statement of general or particular applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency . . ., but does not include the following:
1. statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
* * * *
3. intra-agency memoranda;
* * * *
6. rules which relate to the acquiring, sale, development and management of the property (both real and personal) of the State or of an agency;
7. rules which relate to contracts for the purchases and sales or goods and services by the State or of an agency;
8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency;
9. rules relating to loans, grants and benefits by the State or of an agency."
Article VIII, IV, of the Constitution of the State of Georgia (Georgia Code Ann. 2-6701) provides as follows:
"Board of Regents of the University System.-There shall be a Board of Regents of the University System of Georgia, and the government, control, and management of the University System of Georgia and all of its institutions in said System

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shall be vested in said Board of Regents of the University System of Georgia...."
The general powers of the Board of Regents are set out in Georgia Code Ann. 32-121, as follows:
"General powers of Board.-The Board of Regents shall have power: 1, to make such reasonable rules and regulations as are necessary for the performance of its duties; 2, to elect or appoint professors, educators, stewards, or any other officers necessary for all of the schools in the university system, as may be authorized by the General Assembly, to discontinue or remove them as the good of the system or any of its schools or institutions or stations may require, and to fix their compensations; 3, to establish all such schools of learning or art as may be useful to the State, and to organize the same in the way most likely to attain the ends desired; 4, to exercise any power usually granted to such corporation, necessary to its usefulness, which is not in conflict with the Constitution and laws of this State."
It is my opinion that any rules or regulations or statements of policy adopted by the Board of Regents of the University System of Georgia pursuant to its duties, responsibilities, and functions as defined by the Constitution and by statute, and in the exercise of powers granted to it under the Constitution and by statute, would relate to the regulation of a school, a college, or a hospital, or other educational, eleemosynary or charitable institution, and would, thereby, be excepted tr0m the definition of "Agency," or would fall within the exclusions of the definitions of "Rule" listed above.
It is also my opinion that any rules or regulations adopted by any school, college or hospital, or other educational institution within the University System of Georgia would not be subject to the provisions of the Georgia Administrative Procedure Act.
October 16, 1964
MARRIAGE LICENSES
I am pleased to acknowledge receipt of your letter in which you ask for an interpretation of that portion of 53-102 of the Georgia Code Annotated which reads as follows:
"Provided, however, that the age limitations contained herein shall not apply upon proof of pregnancy on the part of the female being presented to the ordinary, in which case the parties may contract marriage regardless of age."
Probably in no area of our laws will be found a greater diversified opinion than in the legal requirements as to issuance of marriage licenses. Generally there seems to be a great deal of discretion placed in the Ordinary as to what constitutes the furnishing of the required

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proof of pregnancy. It appears that medical testimony or a doctor's certificate as to the fact of pregnancy were probably the types of evidence the Legislature intended to require in the passage of this above quoted law. However, I must call your particular attention to Georgia Code Ann. 53-202, which provides, inter alia, the following:
"Provided, further, however, that the preceding proviso shall not apply in any case where the parties to the marriage are at least 21 years of age and shall not apply in any case where the proposed wife is pregnant, P'roviding that the proposed wife executes an affidavit to the fact that she is P'regnant, regardless of the age of either party." (Emphasis added)
As this above quoted section of Georgia law has not been repealed it is therefore my personal opinion that the affidavit of pregnancy proviso of this above quoted law would suffice as "proof of pregnancy" required under 53-102 as quoted above.
October 19, 1964
OPINION TO THE GAME AND FISH COMMISSION
You have asked whether the law which prohibits Sunday hunting in Georgia is sufficiently broad to include a prohibition against hunting with bow and arrow, or whether the prohibition is confin{)d to the use of firearms.
Section 26-6906 of the Georgia Code Annotated sets forth the law on this subject. That section reads as follows:
"Huntin1g on Sunday.,......-Any person who shall hunt any kind of game with gun or dogs, or both, on the Sabbath day, shall be guilty of a misdemeanor."
From the foregoing, it is apparent that only hunting with gun or dogs, or both, is prohibited, and that the section is not sufficiently broad to prohibit hunting with bow and arrow.
Moreover, we have found no statute in the Game and Fish Title of the Code which would extend the prohibition against hunting on Sunday to hunting with bow and arrow. We believe that the Commission might use its regulatory powers to prohibit such hunting, but at the present it would appear that no such prohibition exists.
October 22, 1964
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge receipt of your letter in which you ask for my official opinion on the following question: "Does the Director of the State Crime Laborary have the authority under the Georgia Post Mortem Act to appoint a doctor of Osteopathy as a county medical examiner?"

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Georgia Association of Osteopathic Physicians and Surgeons, Inc. v. Allen, 31 F. Supp. 206 (D.C. Ga., 1940), and Mabry v. State Board of Examiners, 190 Ga. 751 (1940), both hold that Osteopaths are neither physicians nor surgeons within the meaning of the Georgia Code Ann. 84-9 and 84-12. Therefore, under the authority of these cases it is my opinion that Osteopaths are not presently eligible for appointment as county medical examiners, and will remain ineligible for such appointment until the existing law is modified.
October 23, 1964
OPINION TO THE GOVERNOR
Thank you for your recent letter enclosing two letters of Allen Chappell wherein he states that he desires to resign from his office as Public Service Commissioner and to accept appointment as Public Service Commissioner Emeritus effective December 30, 1964, under the provisions of an Act of the General Assembly of the State of Georgia, approved March 7, 1957 (Georgia Laws 1957, p. 206, et seq.; Georgia Code Ann. Ch. 78-12), as amended. Mr. Chappell states in his letters that he is seventy-five years of age and has continuously served as a Public Service Commissioner since December 1, 1941. You request my official opinion as to whether Mr. Chappell is eligible for such appointment.
On the basis of this information, it is my opinion that Mr. Chappell is entitled to appointment as a Public Service Commissioner Emeritus under the provisions of the above Act, and that you are under a mandatory duty to make such an appointment.
October 28, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you request an opinion "as requested by Regional Attorney in the Department of Health, Education and Welfare" in connection with the legal authority of the Georgia State Agency for Surplus Property. You have attached the letter which you received from said "Regional Attorney" and it appears therein that his specific desire is to ascertain:
(1) Whether the Georgia State Agency for Surplus Property has the authority to acquire, warehouse and distribute surplus property to education, health and civil defense activities;
(2) Whether the Agency has the authority to execute certifications and agreements, assess and collect service charges and enter into cooperative agreements ; and
(3) The authority of the Agency to handle funds.

626
My opinion respecting the foregoing as well as the reasons therefor are as follows :
OPINION
(1) The Georgia State Agency for Surplus Property is authorized to acquire, warehouse and distribute surplus property to education, health and civil defense activities.
(2) The Georgia State Agency for Surplus Property is authorized to execute certificates and agreements, assess and collect service charges and enter into cooperative agreements with the U.S. Department of Health, Education and Welfare.
(3) The Agency, acting as an agent of the State Board of Education, is legally authorized to handle funds in such manner and to the extent that rules and regulations of the State Board of Education permit. [Assuming, of course, that such regulations do not exceed the scope of authority that the Department of Education itself possesses respecting the handling of such funds.]
DISCUSSION
(1)
In Georgia, as elsewhere, the cardinal rule in interpreting a statute is to ascertain and give effect to the intention of the Legislature, where such intention is within constitutional limits. See e.g., Georgia Code Ann. 102-102 (9); Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958). It is also well settled in this State as elsewhere that public officials and boards, while generally limited to those powers which have been conferred upon them by law [see Georgia Code Ann. 89903] are also empowered to do those things which are necessary to execute those powers and carry out those duties which have been expressly conferred upon them. See 67 C. J. S. Officers 102 (b), 107 (a) (1950); Taylor v. State, 44 Ga. App. 387, 395 (1931) (cert. denied).
In light of the foregoing rules, it would appear to me that the power to acquire, the power to store, and the power to distribute surplus property are manifestly powers which the Georgia State Agency for Surplus Property possesses by implication, such powers being necessarily vested in the Agency if it is to execute those powers and carry out those duties which are expressly conferred upon it by Section 53 of the new Minimum Foundation Program of Education Act [Georgia Laws 1964, pp. 3, 46]. Section 53 provides:
"The State Board of Education is hereby authorized to establish and operate a State Agency for Surplus Property for the purpose of distributing surplus properties made available by the Federal Government under provisions of Public Law 152, 81st Congress, as amended, to institutions, organizations, agencies and others as may now or hereafter be eligible to receive such surplus properties pursuant to applicable provisions of Federal law. The State Board of Education may enter into or authorize the State Agency for Surplus Property to enter into

627
cooperative agreements with the Department of Health, Education and Welfare of the Federal Government for the use of surplus properties by the State Agency, and for providing administrative assistance in the transfer of title to real property from the Federal Government to institutions, organizations, agencies, and others as may now or hereafter be eligible to receive such properties pursuant to applicable provisions of Federal Law."
That the distribution by the Agency under this statute of surplus property of the Federal Government to eligible institutions and organizations will necessarily involve activities as acquiring physical possession of the property, warehousing and distributing the same, seems too obvious to require further comment.
(2)
In so far as entry into cooperative agreements is concerned, it may be noted that Section 53 expressly states:
. "The State Board of Education may enter into or authorize the State Agency for Surplus Property to enter into cooperative agreements with the Department of Health, Education and Welfare of the Federal Government ...."
As to authority t<;> execute certifications and agreements and to assess and collect service charges, I am of the opinion that these powers are vested in the Agency for the same reasons set forth above respecting the necessarily implied powers to acquire, warehouse and distribute. In addition, it may be noted that distribution by the Agency under Section 53 is to be made "under" [i.e., "pursuant to" or "in accordance with"] provisions of Public Law 152 [40 U.S.C.A. 484]. It would, therefore, seem that the intention of the General Assembly was that the Agency be allowed to do those things permitted by federal law as well as those authorized under the State statute, and that both Federal and State law be construed in pari materia concerning the powers of the Agency.
(3)
Georgia Code Ann. 32-413 provides in part that the State Board of Education is authorized and empowered to receive, accept, hold and operate donations, grants, gifts, devises and bequests of property of every kind, and
" to accept on behalf of the State of Georgia any funds which may be now or hereafter provided for, or be or hereafter become available or allotted to the State of Georgia by virtue of any appropriation by Congress or under any regulation, order or declaration of policy for ... educational purposes ... and ... to delegate, in whole or in part, any function or activity enumerated or contemplated hereunder . . ." (Emphasis added).
Under the foregoing statutory language, the authority of the Georgia State Agency for Surplus Property to handle funds in accordance with and to the extent that rules and regulations of the State Board of

628
Education permit seems clear. The Agency is created as an instrumentality of the Board of Education and under Section 53 was created to act for the Board in matters involving surplus property.
October 28, 1964
COUNTY BOARD OF EDUCATION
This is in reply to your letter wherein you ask whether a county board of education may deed revenue-producing property to a citizen or group of citizens without charge.
It is my unofficial opinion that it would be illegal for a county board of education to deed revenue producing property to a citizen or group of citizens without charge.
It is axiomatic that the powers of public officers and boards are limited to those defined by law. Georgia Code Ann. 89-903. Hence, in the absence of express, or at the very least a necessarily implied, grant of the power to do so by statute, public officers or boards can neither enter into contracts which will bind the public, [see e'.g., Killian v. Cherokee County, 169 Ga. 313 (2) (1929)], nor lawfully dispose of any public property or funds. See, e.g., Freeney v. Geoghegan, 177 Ga. 142 (2) (1933).
The statutory grant of authority to county school boards respecting the acquisition, use and disposal of schoolhouses or other school property is set forth by Georgia Code Ann. 32-909. The relevant portions of this rather lengthy code provision declare:
"The county boards of education shall have the power to purchase, lease, or rent school sites.... The said boards are invested with the title, care and custody of all schoolhouses or other property, with power to control the same in such manner as they think will best serve the interests of the common schools; and when, in the opinion of the board, any schoolhouse site has become unnecessary or inconvenient, they may sell the same in the name of the county board of education, and said county boards of education may convey any schoolhouse site or building, which has become unnecessary or inconvenient for county school purposes and which is located in a municipality, to the municipality ... to be used by the municipality for educational or recreational purposes in consideration for the municipality's promise and agreement to maintain and keep said property in repair and insured...." (Emphasis added)
While the discretionary powers of a county school board are exceedingly broad under this code section, it is, in my opinion, quite clear that the statute does not authorize a county school board to make a "gift" of school property to a citizen or group of citizens. The power of disposition, other than where to a municipality of property lying
within such municipality, is limited to the "sale" of such property

629
after the board has found [presumably by resolution] that the property is either unnecessary for or inconvenient to school purposes. The word "sale," of course, normally contemplates the payment of money in exchange for the transfer of property. See Black's Law Dictionary, "Sale," p. 1503 (4th Ed. 1951).
Moreover, the Constitution of Georgia of 1945, in Article VIII, Section I, Paragraph II [Georgia Code Ann. 2-5402] would by its prohibition of "gratuities" by the State or its subdivisions to persons, individuals or corporations, seem to preclude any possible interpretation of 32-909 to the contrary.
It may be noted that while a county school board may not lawfully deed property to a citizen or group of citizens other than pursuant to a "sale" of the property, the language of the statute does authorize a conveyance by private sale as well as by public sale, Duffee v. Jones, 208 Ga. 639, 644 (1951), and in general the sale price is a matter within the discretion of the school board, see Ops,. Att'y Gen. 260 (1954-56). On the other hand it must be recognized that should a board of education set a sale price for a private sale which is unreasonably low, the transaction would be open to legal attack as an abuse of discretion by the board.
October 29, 1964
OPINION TO THE DEPARTMENT OF AUDITS
You asked my opinion as to whether the State Auditor is entitled to compensation at the rate of $240 per annum for service on the Budget Bureau under the provisions of the Legislative Act of March 12, 1953.
Compensation of the State Auditor is covered by Georgia Laws 1953, page 613, as amended, particularly by Georgia Laws 1956, page 324. The 1953 Act provided for compensation at the rate of $240 per annum for each ex officio created by law, provided the Attorney General certifies the same to the Auditor. The 1956 Act amended this so that
"Any such ex-officio office created by law subsequent to July 1, 1956, must specifically provide for compensation in order for such payment to be made therefor."
The present Budget Bureau was created by Georgia Laws 1962, page 17, approved February 12, 1962, a date obviously after July 1, 1956. The old Budget Bureau which was created in 1931 made the Auditor an Assistant Director of the Budget. It was contained in the Georgia Code of 1933 as Code Chapter 40-4, and under the State Officials' Salaries Act of 1953, page 613, was compensable as an ex officio's office for the State Auditor.
The 1962 Act, in Section 1, created the new Budget Bureau by
"striking said Code Chapter (40-4) in its entirety and substituting in lieu thereof a new Code Chapter 40-4 ...."

630
Section 40-403 of this new Code Chapter creates the new Budget Bureau. The Governor is made Ex Officio Director of the Budget (Paragraph 1), and the administrative head is designated as the State Budget Officer (Paragraph 3). The Auditor is no longer an Assistant Director, and it is my opinion that the office he held was abolished.
The present Budget Bureau constitutes a new office, and the State Auditor is not included, nor even mentioned, except in Paragraph 4 of 40-403, which names him, together with the Attorney General, State Treasurer, Comptroller General, and State Revenue Commissioner
"to render such advice and assistance, and furnish such information to the Budget Bureau as may be requested and needed."
Based on the foregoing, it is my opinion that the Auditor is not entitled to such compensation, and that the effective date of June 30, 1962 (provided for by Section 12 of the Act) would be the date after which the Auditor would no longer be entitled to such compensation.
October 30, 1964
GEORGIA STATE AGENCY FOR SURPLUS PROPERTY
We have been requested to set forth the conditions pursuant to which Milledgeville State Hospital, Battey State Hospital and Gracewood State School and Hospital might appropriately purchase passenger carrying vehicles from the Georgia State Agency for Surplus Property.
Under the provisions of 40-2001 of the Georgia Code of 1933, codified unofficially as 40-2001, Georgia Code Annotated, it is provided that 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 that it is unlawful to expend any funds appropriated to any such department, institution, board, bureau or agency, or any State funds otherwise coming into the possessinon of such department, etc., for the purchase of any passenger carrying automobiles.
While this above quoted section of the Code prohibits the purchase by most departments of passenger carrying vehicles, this office has ruled on several occasions that institutions such as those named above may purchase passenger carrying vehicles for use in the transportation of patients, etc., so long as they are not purchased for the purpose of carrying either State officials or employees.
In each instance where a vehicle is used for this purpose, a sworn affidavit is given by the appropriate official of the institution proposing to purchase such automobiles from your agency. This affidavit

631
must set forth that the intended use is to the above stated effect, and if this is given, it is my opinion that you then would be free to deal with that institution in the same manner as you otherwise deal in the sale of personal property.
It is therefore my opinion that the Georgia State Agency for Surplus Property can make available passenger carrying vehicles to our institutions upon receipt of an affidavit outlining the conditions under which they may be obtained.

November 2, 1964

OPINION TO THE BUDGET BUREAU

You have asked this office to give you a ruling as to whether the Budget Bureau comes under the Administrative Procedure Act.

The Georgia Administrative Procedure Act (Georgia Laws 1964, page 338) in Section 2 defines an "Agency" that comes under the provisions of the Act as "each state board, bureau, commission, department, activity or officer authorized by law ... to make rules and regulations...."

Although the Budget Bureau under the provisions of the Budget Act (Georgia Laws 1962, page 17) is expressly authorized to make
certain rules and regulations, the Budget Act states, at page 20:

"There shall be established in the office of the Governor a
Budget Bureau, as a separate budget unit, for the purpose of promoting economy and efficiency in the fiscal management of
the State government. The Governor shall be ex officio Director of the Budget."

It is our opinion that the rules and regulations made by the Budget
Bureau are excluded under the definition of "Rule" set out in the Administrative Procedure Act (Georgia Laws 1964, at page 340, Section 2 (f)). The definition of "Rule" expressly excludes the following:

"1. statements concerning only the internal management

of an agency and not affecting private rights or procedures

available to the public;



* * * *
3. intra-agency memoranda;

* * * *
8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency;

9. rules relating to loans, grants and benefits by the State or of an agency."

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In reviewing the Budget Act of 1962, it is my opinion that the rules and regulations, procedures, and standards that are issued or prescribed by the Budget Bureau, affect only the internal management of the Budget Bureau and the various agencies of State government, and fall within the exclusion of the definition of "Rule." For these reasons, it is my opinion that the Budget Bureau is not subject to the Administrative Procedure Act.
November 2, 1964
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether it is legally permissible to use inmates of the State Prison System for daily civic labor in and about a municipality in exchange for the use by the Board of Corrections of an existing prison facility owned by the municipality. You state in your request that adequate security arrangements can be made.
The controlling Statute on this question is found in Georgia Laws 1956, pages 161, 177, as amended by Georgia Laws 1957, pages 477, 480, unofficially codified as Georgia Code Ann. 77-318, the pertinent portions of which are as follows:
"(a) The State Board of Correctons shall provide rules and regulations governing the hiring out of prisoners by any penal institution under its authority to municipalities, cities, the State Highway Department, or any other political subdivision, public authority, public corporation, or agency of State or local Government, which are hereby authorized to contract for and receive said prisoners, but such prisoners shall not be hired out to private persons or corporations, nor shall any instrumentality of Government hereinbefore authorized to utilize prison labor use such labor in a business conducted for profit."
* * * *
"(d) The Board of Corrections or any penal institution or county public works camp operating under jurisdiction of the board shall be authorized to require prisoners coming into its custody to labor on the public roads, public works, or in such other manner as the board may deem advisable. The Board of Corrections may also contract with municipalities, cities, counties, the State Highway Department, or any other political subdivision, public authority, public corporation or agency of State or local Government now or hereafter created by law, which are hereby authorized to so contract with the board, for the construction, repair, or maintenance of roads, bridges, public buildings and any other public works by use of prison labor."
In construing this Code Section, I have previously ruled that prisoners may be used on municipal streets duly dedicated to public.

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use, Ops. Att'y Gen. 249 (1958-59); that prison labor may be used on private land where in consideration for such labor the land is to be used rent free by a prison branch for a term of years, Ops. Att'y Gen. 248 (1958-59) ; that said prisoners may be used to construct and repair public buildings, Ops. Att'y Gen. 45 (1958-59).
In correlating the holding of these opinions with the above cited Statute, it is my opinion that prison labor may be used for the purposes you describe provided there is no rule or regulation of the Board prohibiting this use.
It is further my opinion that prison labor may be used only in connection with those services and functions of municipalities which are deemed "governmental" in nature as opposed to "ministerial" functions which are those performed by municipalities for profit. This is necessitated by Georgia Code Ann. 77-318 (a) which states "nor shall any instrumentality of government hereinbefore authorized to utilize prison labor use such labor in a business conducted for profit."
November 2, 1964
OPINION TO THE DEPARTMENT OF MINES, MINING, AND GEOLOGY
You have requested an opinion upon the following questions:
1. Is "clay" classified as a mineral (where one person owns "surface rights" and another person owns "mineral rights" in a tract of land)?
2. What are the rights of the "surface owner?"
Since I am unable to find the word "mineral" defined in the statutes of this State, I refer you to Black's Law Dictionary, where the term "mineral" is defined as :
"Any valuable inert or lifeless substance formed or deposited in its present position through natural agencies alone, and which is found either in or upon the soil of the earth or in the rocks beneath the soil."
"The word is not a definite term and is susceptible of limitations or extensions according to intention with which it is used. Standing alone it might embrace the soil, hence include sand and gravel, or, under a strict definition, it might be limited to metallic substances."
"Clay" is defined in Webster's Dictionary as: "an earthy material plastic when moist but hard when fired, composed mainly of fine particles of hydrous aluminum silicates and other minerals and used for brick, tile and earthen ware."
Brick and tile day has been judicially declared to be a mineral but

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not an ore under a specific revenue statute. See Cherokee Brick and Tile Co. v. United States, 122 F. Supp. 59, 64 (M.D.GA. 1954).
In view of these definitions it would appear that "clay" is a mineral in the broad sense of the term. Your attention, however, is again called to the definition quoted from Black's Law Dictionary that the word "mineral" is not a definite term, is susceptible to limitations and extensions, and should be construed according to the intention with which it is used. In this connection your attention is called to a discussion of this subject found in 58 C.J.S. Mines and Minerals 155 (c) (1) (1948):
"What minerals, and the extent, quantity and location thereof, are included in a grant or reservation of minerals or mineral rights depends on the intentions of the parties as determined by the general rules of construction as applied to the language of the instrument and the surrounding circumstances, the words "mines" and "mineral" being understood in their popular and ordinary, and not in their scientific meaning. The term "minerals" in a conveyance or reservation is not limited to metallic substance. Where there is a grant or reservation of minerals without other words of limitation or restriction, all minerals ordinarily will be granted or reserved, and, if the ordinary or accepted meaning is to be changed or restricted, the language to do so must be reasonably clear to show that intent. The use to which the property ordinarily is suited may control in determining the meaning of the word "minerals". In doubtful cases the meaning of the word "minerals" will be restricted to that given by custom of the country in which the deed is to operate."
Not having before me the conveyance or reservation under which the "mineral rights" to the property under discussion are owned, I am unable to give a more specific answer to the first question submitted, since the answer would depend to a large degree upon the language used in the conveyance or reservation.
With reference to the rights of the surface owner, you are advised that this question is too broad in its scope for me to attempt to answer without a more specific application. Just as in the answer to the first question submitted, the answer would depend to a large extent on the language used in the conveyance or reservation of "surface rights".
Since the questions submitted to you by the owner of the mineral rights involve a personal matter between him and the surface owner, it is suggested that if he feels he needs legal advice in the matter, he should discuss it with an attorney engaged in the private practice of law.

635
November 4, 1964
OPINION TO THE CONSTITUTION REVISION COMMISSION
I have your letter requesting an opinion on the following question:
"Under the resolution creating the Commission together with the amendments to said resolution adopted by the Legislature in 1963, can a member of the Commission be paid a per diem if such member is drawing compensation from another branch of government other than the legislative branch?"
For the purpose of clarity with respect to the amendment passed at the 1964 session of the General Assembly (Georgia Laws 1964, page 387), I am setting out in full herewith the second from the last paragraph of the resolution creating the Constitution Revision Commission (Georgia Laws 1963, page 402 at page 406), and the amendment striking said paragraph in its entirety and inserting in lieu thereof a new paragraph (Georgia Laws 1964, at page 388). I am underscoring the portions of the 1964 amendment which were added to and which amend the 1963 resolution.
A. The 1963 version:
"The Governor, the Lieutenant Governor, the Attorney General, the Secretary of State, the Justice of the Supreme Court, the Superior Court Judge, the Legislative Council, and the State Budget Officer, shall receive no compensation or per diem for their services but shall be reimbursed for all expenses incurred in carrying out their duties hereunder. All such officials shall be reimbursed from the same funds from which they are otherwise compensated. The other members of the Commission shall receive the compensation, per diem, expenses and allowances authorized for legislative members of interim legislative committees. The other members of the Commission shall receive the above from the funds appropriated to or available to the legislative Branch of the Government and from any other appropriations or available funds. All funds, except as provided herein, which are necessary to effectuate the purposes of this Resolution, shall come from the funds appropriated to or available to the Legislative Branch of the Government and from any other appropriations or available funds. No expenditure will be made in any one fiscal year in excess of $75,000, or prorata for less than a fiscal year."
B. The 1964 version:
" 'The Governor, the Lieutenant Governor, the Attorney General, the Secretary of State, the Justice of the Supreme Court, the Superior Court Judge, the Legislative Council, and the State Budget Officer, shall receive no compensation or per diem for their services but shall be reimbursed for all expenses incurred in carrying out their duties hereunder. All such officials shall be reimbursed from the same funds from which they are otherwise compensated. The other members of the

636
Commission shall receive the compensation, per diem, expenses and allowances authorized for legislative members of interim legislative committees. The Solicitor General shall receive the above from the funds ap,propdated for the Superior Courts. The other members of the Commission shall receive the above from the funds appropriated to or available to the Legislative Branch of the Government and from any other appropriations or available funds, and this shall apply to any such members who might be officials or employees of the Judicial or Executive Branches of the Government, provided, however, that no such p,erson shall be paid a sum of money greater than the actual expenses incurred in the p~erformance of said duties, and re,gardless of any other provisions of any other law to the contrary. All funds, except as provided herein, which are necessary to effectuate the purposes of this Resolution, shall come from the funds appropriated to or available to the Legislative Branch of the Government and from any other appropriations or available funds. No expenditure shall be made in any one fiscal year in excess of $75,000, or pro rata for less than a fiscal year.' "
From a comparison of the original1963 Resolution and the amended 1964 Resolution, it is clear to me that the amendment to the Resolution provides that members of the Commission "who might be officials or employees of the Judicial or Executive Branches of the Government" may be paid from "funds appropriated to or available to the Legislative Branch of Government and from any other appropriations or available funds ..., provided, however, that no such person shall be paid a sum of money greater than the actual expenses incurred in the performance of said duties, and regardless of any other provisions of any other law to the contrary." (Emphasis added)
It is, my opinion therefore, that members of the Commission who are officials or employees of the Judicial or Executive Branches of the Government cannot be paid per diem, but may only receive actual expenses incurred in the performance of their duties.
November 5, 1964
OPINION TO THE GAME AND FISH COMMISSION
We are in receipt of your letter relative to non-resident fishing licenses for persons under 16 years of age.
Though 45-207 of the Georgia Code Annotated provides that licenses will not be required for persons under 16 years of age, that section specifically applies to residents, and we have found no provisions of law which would extend the exemption from licenses to non-residents under 16. Accordingly, we feel it appropriate that nonresidents be required to have licenses regardless of age.
You asked our opinion on whether convictions would be obtainable against non-residents under 16 where they were apprehended without licenses. This, of course, would depend upon the circumstances in the

637
particular case. We would imagine that a court would not have difficulty in assessing a nominal fine against a 15-year-old who obviously is as capable as an adult of fishing or hunting; but, on the other hand, a court might well refuse to convict a 10-year-old who simply happened to accompany his family on a fishing trip. However, to correct the problem in Northeast Georgia created by North Carolina residents on three-day trout fishing excursions, we believe that you can appropriately insist upon a permit for any young person who in the reasonable judgment of the authorities could fish as well as an adult.
November 9, 1964
OPINION TO THE STATE AUDITOR
I wish to acknowledge your letter requesting my opmwn as to whether the Department of Audits falls within the provision of the Georgia Administrative Procedure Act.
I have reviewed the laws applicable to the Department of Audits and Accounts, and while I find that the State Auditor is authorized to promulgate, install, and establish forms and records for the collecting and paying out of all moneys, to insure the proper use of all stores, equipment and property of the State (Georgia Code Ann. 401805); to promulgate rules, regulations, and forms in conformity with Chapter 40-18 of the Code; and to prepare and publish, by and with the approval of the Governor, complete forms applicable to the business transacted by each of the several boards, offices, institutions, departments, and commissions of the Executive Department of the State Government (Georgia Code Ann. 40-1813), it is my opinion that the Department of Audits is not subject to the Georgia Administrative Procedures Act.
I arrive at this conclusion even though the Georgia Administrative Procedures Act (Georgia Laws 1964, p. 338), under the definition of "Agency" would seem to include the Department of Audits, because under the defintion of "Rule" in Section 2 (f) the rules and regulations of the Department of Audits are excluded, Section 2 (f) of the Administrative Procedure Act specifically excludes the following types of rules:
"1. statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
* * * *
3. Intra-agency memoranda;
* * * *
6. rules which relate to the acquiring, sale, development and management of the property (both real and personal) of the State or of an agency;

638
7. rules which relate to contracts for the purchases and sales of goods and services by the State or of an agency;
8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency.
9. rules relating to loans, grants and benefits by the State or of an agency."
It is my official opinion that the rules and regulations, procedures, forms, and standards that are issued or prescribed by the Department of Audits or the State Auditor fall within the exclusions itemized above in dealing with the internal fiscal activities of the various State agencies of the State Government, and do not come under the provisions of the Administrative Procedure Act.
November 10, 1964
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter requesting an opinion as to whether the Division of Vocational Rehabilitation can legally make grants to private non-profit rehabilitation agencies.
The factual situation, as I understand it, is one which arises under the Federal Rehabilitation Act of 1964. That federal act permits funds donated to the State by private non-profit rehabilitation agencies for specified rehabilitation matters to be used for federal matching purposes. Your letter indicates that the willingness of such private agencies to make contributions to the State so as to obtain the federal matching funds would be dependent for the most part on whether or not the State, through the Division of Vocational Rehabilitation, could, after reveiving such federal funds, return the contribution as incremented by federal funds to the private agency [then to be utilized by the private agency for the specified rehabilitation purposes]. Based upon the above understanding of the facts involved, it is my opinion that the Division of Vocational Rehabilitation may not legally make "grants" to private non-profit rehabilitation agencies under the factual situation indicated.
It is basic that the powers of public officers and boards are limited to those defined by law. Georgia Code Ann. 89-903. Hence, in the absence of an express, or at the very least a necessarily implied grant by statute of the power to do so, such officers or boards may not lawfully dispose of any public property or funds. See, e.g., Freeney v. Geoghegan, 177 Ga. 142 (1) (1933) ; Cole v. Foster, 207 Ga. 416, 418 (1950).
While Chapter 32-23 of the Georgia Code Annotated entitled "Vocational Rehabilitation of Disabled Persons" clearly authorizes the State Board of Education to accept on behalf of the Division of Vocational Rehabilitation

639'
"gifts made under such conditions as in the judgment of the State Board are proper and consistent with the provisions of this Chapter..." (See Georgia Code Ann. 32-2308),
I find no provision in such chapter authorizing "grants" of State funds to private rehabilitation agencies. Moreover, the remote possibility of a judicial holding that such power is necessarily implied from the above quoted portion of Georgia Code Ann. 32-2308, from Georgia Code Ann. 32-2306 (which designates the State Treasurer as custodian of
"all moneys received from the Federal Government for the purpose of carrying out any Federal statutes pertaining to the purpose of this Chapter, ...")
and/or from Georgia Code Ann. 32-2305, which states:
"The State Board, through the Division of Vocational Rehabilitation is hereby empowered and directed to cooperate pursuant to agreements with the Federal Government in carrying out the purposes of any Federal statutes pertaining to the purposes of this Chapter and is authorized to adopt such methods of administration as are found by the Federal Government to be necessary for the proper and efficient operation of such agreements or plans for vocational rehabilitation and to comply with such conditions as may be necessary to secure the full benefits of such Federal statutes and appropriations ; to administer any legislation pursuant thereto enacted by the State of Georgia to direct the disbursement and administer the use of all funds provided by the Federal Government or this State for the vocational rehabilitation of impaired persons of this State and to do all things necessary to insure the vocational rehabilitation of impaired persons,"
would seem to me to be negated by that portion of Georgia Code Ann. 32-2307 which provides:
"In the event Federal funds are available to the State of Georgia for vocational rehabilitation purposes, the Division of Vocational Rehabilitation is authorized to comply with such requirements as may be necessary to obtain said Federal funds in the maximum amount and most advantageous proportion possible insofar as this may be done without violating other provisions of the State law and Constitution." (Emphasis added)
I conclude, therefore, that there is no statutory authority for the Division of Vocational Rehabilitation to make "grants" to private nonprofit rehabilitation agencies.
In addition, I might point out that the possibility of legislative correction of this situation, where the disbursement of State funds is an outright "gift" or "gratuity" to the private agency rather than a payment for services actually rendered to the Division, would seem to require constitutional amendment as well. Article VIII, Section I, Paragraph II (1) [Georgia Code Ann. 2-5402] expressly prohibits the General Assembly by vote, resolution or order, from granting a

640
donation or gratuity in favor of any person, corporation or association. The Supreme Court of Georgia has held that the fact that the purpose of the donation of public funds by a governmental authority may be highly beneficial to the general public will not suffice to avoid the restriction imposed by this constitutional provision. See Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (1932) [holding that county commissioners could not donate county funds derived from taxation or other sources, to the Atlanta Chamber of Commerce, the Atlanta Freight Bureau or the Atlanta Convention and Tourist Bureau for the worthy causes and beneficial civic purposes of those organizations].
In closing, I wish to emphasize that the constitutional provision referred to above, would not, in my opinion, prohibit the General Assembly from enacting legislation permitting the Division to enter into contracts with private rehabilitation agencies whereunder such agencies could receive payment for services actually rendered to the Division.
November 10, 1964
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
You asked that I give you my opinion whether a modification agreement entered into by the Employees' Retirement System of Georgia, as State agency for social security (pursuant to Georgia Laws 1953, Nov.-Dec. Sess., p. 294, as amended), and Laurens County, Georgia, for the purpose of covering the sheriff and employees of the sheriff's department, is vaHd and enforceable. The question has arisen because of the holding of the Court of Appeals in Employees' Retirement System of Georgia v. Lewis, 109 Ga. App. 476 (1964).
The particular agreement in question is a modification (No. 115) of the original agreement executed by the county on July 19, 1956, and accepted by the Employees' Retirement System on December 27, 1956. Its purpose was to provide social security coverage for employees covered by a public retirement system, namely, the Peace Officers' Annuity and Benefit Fund. At that time, the county sheriff's department was operating under a 1952 statute (Georgia Laws 1952, p. 2396) placing the sheriff and all employees on salary. Sometime after the agreement had been executed, the Supreme Court ruled the 1952 act to be invalid, and the sheriff's department reverted to its previous status, whereby the sheriff was under the fee system and all employees were paid by him. The county then stopped reporting the employees for social security.
Employees' Retirement later brought a suit to determine whether or not the employees of the sheriff's office were covered by social security. The Court of Appeals ruled that the county was not bound by the contract as to the deputies and employees, and that there was neither an obligation to cover, nor any intention to cover, those employees.

641
Since it is obvious from the correspondence and memoranda surrounding the original contract that the intention was to cover all persons as a group, but that this intention was impossible of performance because of the invalidity (though unknown to the parties) of the salary act, I feel the intentions of the parties were defeated. It is my opinion there was no intention to cover only one person without coverage of all, and that because of the Court of Appeals' decision holding the contract void and unenforceable as to the employees of the sheriff's department, the contract should be considered void as to all persons attempted to be covered thereby. I do not feel any doctrine of apportionment has application here.
I think the proper course of action would be to notify the county the modification is void in its entirety, and that steps should be taken for adoption of a new modification agreement and submission of error modification reports to the Federal Social Security Administration.
November 16, 1964
OPINION TO THE PURCHASING DEPARTMENT
You requested my opinion concerning the legal requirements for newspaper advertising by the Purchasing Department of Contracts on which the Department must advertise for bids. You included with your letter certain communications from the Atlanta Times relative to the contention of that newspaper that it is eligible to participate in advertising for the Purchasing Department.
The general requirement concerning advertising for bids by the Purchasing Department is contained in Georgia Code Ann. 40-1909. That Section only requires that the advertisement be "in a newspaper of State-wide circulation." Generally speaking, therefore, the Atlanta Times would be qualified to engage in general advertising for the Purchasing Department.
Of course, as has been noted, Georgia Code Ann. 39-1103, covers what is known as "legal advertising," which must be done in a newspaper circulated as a county organ. With respect to advertising of that nature, the county organ must be a newspaper which has been continuously published for a period of two years, and in which eighty-five per cent of the circulation of such newspaper is paid circulation. Generally speaking, however, the advertisements of concern to the Purchasing Department are not "legal advertisements" within the purview of the laws covering legal advertisement.
You have expressed particular concern about advertisements on behalf of the State Highway Department covering surplus property on newly acquired rights-of way. Section 95-1632 of the Georgia Code Annotated covers advertising on behalf of the Highway Department, and that Section only provides that the advertisements be published in "such newspapers and/or other publication as will assure adequate publicity." Thus, in the case of contracts covering property on newly

642
acquired rights-of-way in Fulton County, for example, if in your judgment adequate publicity will be assured by advertising in the Atlanta Times, it would appear that you are free to do so. In other counties, particularly those far away from Atlanta, your practice of advertising in local newspapers, whether or not they are county organs, appears to be appropriate.
November 16, 1964
HOSPITAL MEDICAL RECORDS
In response to your request for information concerning the retention and preservation of medical records, this is to advise that there is no State statute governing the preservation of hospital medical records nor has the State Board of Health under the provisions of the 1964 Georgia Health Code as unofficially codified in 88-1903, Georgia Code Annotated, adopted or promulgated any rule or regulation pertaining to the preservation of medical or hospital records.
It is clear that the hospital record is maintained primarily for the use of the hospital and the medical staff in providing better patient care; thus the length of time a record should be retained should be determined on the basis of sound hospital and medical practice. However, in adopting a policy for the preservation of medical records in your hospital, I feel the following provisions, as found in 3-706 and 3-1004, Georgia Code Ann., should be called to your attention and the same taken into consideration in the formulation of your policy, to wit:
"3-706. Open accounts; breach of contract not under hand of party; implied assumpsit.-All actions upon account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued."
"3-1004. Injuries to the person.-Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year."
In the case of minors, it is well to note that the statute of limitations does not begin to run until the minor has reached his majority, i.e., twenty-one years of age. It therefore would seem advisable to retain such record until the minor has become sui juris, plus the additional years in which to institute a suit for personal injuries permitted by the State laws cites in the above paragraph.
Where there are no controlling regulations, then no blanket rule can be devised. The length of time medical or hospital records should be retained after they are no longer needed for medical and/or administrative purposes should be determined by the hospital administrator with the advice of counsel, taking into account the legal con-

643
siderations of having such records available in the event a suit is instituted by a patient against the hospital or against a third party.
I might add that a cursory search of the Georgia annotations discloses no cases in which liability has been imposed on a hospital for failure to retain hospital records.
It is therefore my personal opinion that the question of how long a hospital should retain medical records is one which lends itself to determination by administrative policy formulated by each individual hospital.
November 25, 1964
OPINION TO THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
I wish to acknowledge receipt of your letter enclosing a letter from President G. G. Aderhold of the University of Georgia, together with correspendence between the Department of Public Safety and Mr. J. D. Bolton, Comptroller of the University.
You state that the correspondence is concerned with the posting of a $1,000.00 performance bond by the University of Georgia in connection with the appointment of the University as a Safety Motor Vehicle Inspection Station, and you request my opinion as to the necessity of such a bond.
The Inspection of Motor Vehicles law is set out in Georgia Laws 1963 at page 333. This law is to become effective January 1, 1965. Section 126 (d) of the law provides:
"The Director shall permit any person, firm, association, corporation, municipality or governmental agency having registered in his or its name sufficient vehicles in this State to maintain approved insp,ection facilities to conduct the inspection required by this Act on such motor vehicles under regulations prescribed by the Director." (Emphasis added)
The "approved inspection facilities" permitted to a governmental agency as set out above are, in my opinion, entirely distinct and separate from the "official inspection stations" provided for in the succeeding Section 126A of the law. Section 126A dealing with official inspection of vehicles requires an application for permit and, as a prerequisite to the issuance of such a permit, that the applicant file a bond conditioned that it will make compensation for any damage to a vehicle during an inspection or adjustment due to negligence on the part of such applicant or its employees. It further provides that the bond is to indemnify the person owning the vehicle.
It is my opinion therefore, that the bond is given for the protection of the owners of vehicles other than vehicles owned by the holder of a permit to operate an approved inspection facility of a governmental

644
agency. There would be no need for the giving of a bond to indemnify the governmental agency which owns the vehicles to be inspected.
Further, all references to the bond required by this law are for "official inspection stations" where inspections are made on vehicles owned by other parties and the provisions are not applicable to the operation of an approved inspection facility of a governmental agency inspecting its own vehicles.
It is my official opinion that the University of Georgia, if permitted by the Director of the Department of Public Safety, subject to such regulations as prescribed by the Director, may inspect State-owned vehicles belonging to the University, the Agricultural Extension Service, Experiment Stations, and the Athletic Association, without being required to give a performance bond as required of "official inspection stations" in Section 126A.
November 25, 1964
MARRIAGE LICENSES
In your letter you asked for the opinion of this office whether: (1) It is against the law to issue marriage licenses on Sunday; (2) If prohibited, whether emergencies could create an exception to the law; (3) If prohibited and violated, would the validity of the marriage be affected.
In answer to the question of issuing marriage licenses on Sunday, Georgia Code Ann. 53-201 is concerned with the granting, return and record of marriage licenses. It reads in part:
"Marriage licenses shall be granted only by the ordinary, or his clerk at the county courthouse, or by the ordinary at his legal residence; only between the hours of 8 A. M., and 6 P. M., or by a clerk at such clerk's residence, provided such residence is within the militia district of the county seat." (Emphasis supplied)
You will note the only prohibition contained in this sentence is against issuing a license between the hours of 6 P.M. to 8 A.M. There is none expressed against issuing a license on Sunday, and neither is there any such prohibition in the remainder of that code section or in the remainder of Code Chapter 53-2. The last sentence of 53-202 also prohibits license sales during these hours, reading:
"No license shall be issued between 6:00 P. M. and 8:00 A.M."
By the legislature being so emphatic as to the restrictions on the hours during which such licenses might be sold, without mentioning any restriction as to the days, it would appear no restrictions were intended. I feel this theory is also supported by reference to sales by the ordinary or his clerk at their residences, it being somewhat obvious

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that they would only be at their residences on Sundays or holidays, as they would normally be in their offices during the hours for which sale is made legal. Thus, I am of the opinion there is no prohibition against issuing marriage licenses on Sundays.
As it is my own personal opinion there is no prohibition against Sunday issuance, there is no need to answer Question Number 2.
Although Question Number 3 need not be answered because of the answer to Question Number 1, I might point out there have been at least two cases in Georgia which indicate a license issued on Sunday would not affect the validity of a marriage, even if there were a law prohibiting issuance on Sunday. I refer you to Minshaw v. State, 25 Ga. App. 240 (1920): "The fact that the license was issued by the Ordinary of a county in which the female did not reside, while improper and contrary to law, would not in itself render the marriage illegal; .... A marriage may be legal without any license at all. Clark v. Cassidy, 64 Ga. 662 (1880); Dale v. State, 88 Ga. 552, 15 S.E. 287 (1892). This being true, it clearly follows that a marriage may be legal although the license was procured in the wrong county [in violation of law]." Also, you might look to Allen v. State, 60 Ga. App. 248 (1939), particulary pages 250 and 251, which contain an excellent discussion on the legalities of marriage generally --- even those in which the parties procured no license.

December 1, 1964
OPINION TO THE GOVERNOR
This is to acknowledge receipt of your request seeking an opinion as to whether officials of Glynn County are authorized to release naval personnel upon the execution of a cognizance bond in misdemeanor cases.
The cognizance bond as presently used by the officials of the U. S. Naval Air Station, Glynco, Georgia, is as follows:
"Cognizance Bond

Date

In consideration of the release of

charged

with

it is agreed that aforementioned prison-

er will be restrained at the U. S. Naval Air Station, Glynco, Georgia in whatever degree considered to be appropriate by

his Commanding Officer. This restraint will be for a minimum

of 12 hours in all cases involving consumption of alcoholic

beverages. It is further agreed that he will not be transferred, granted leave or discharged from the Navy without notice to

the Sheriff or his Chief Deputy, and will be delivered to the Sheriff or his deputy upon demand. These terms and conditions will be withdrawn only upon his posting of the required personal bond or upon the release by the Sheriff, his deputy or the appropriate court.

Signed -------Official Title --------"

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For a bond to be valid it must be returnable to some court. Hardwick v. Shahan, 30 Ga. App. 526, 118 S.E. 575 (1923). The above cognizance bond is not returnable to any court; therefore, on its face it is invalid.
Georgia Laws 1921, p. 241 (Georgia Code Ann. 27-902) states that sheriffs and constables shall accept bail in such reasonable amount as may be just and fair, for any person or persons charged with a misdemeanor, provided that the sureties tendered and offered on said bond are approved by a sheriff of any county.
Captain M. C. Norton, Jr., Commanding Officer at the Glynco Naval Air Station, in his letter to you indicated that Navy regulations do not provide for the furnising of bond by the Navy or by its official representatives and, in fact, prohibit such a relationship.
This being true, the officer signing bond for the prisoner is not signing the bond in his official capacity. The officer would be signing as surety as required by Georgia Code Ann. 27-902, if the sheriff should accept him as such, upon the posting of bail by or on behalf of the prisioner.
Therefore, as the cognizance bond in its present form is invalid, the statutory requirement relating to bail must be met before any prisoner can be released to the Naval authorities at Glynco Naval Air Station.
December 3, 1964
GEORGIA HEALTH CODE
I am pleased to acknowledge receipt of your recent letter in which you ask my unofficial opinion as to what section of the Georgia Health Code passed by the 1964 Regular Session of the General Assembly may be used to restore a person to normal sanity and capacity who was committed to the Milledgeville State Hospital under the old "lunacy commission law" now repealed.
As you know, the Georgia Health Code (Georgia Laws 1964, p. 499) unofficially codified as Title 88 of the Georgia Code Annotated, completely rewrote the laws dealing with hospitalization of the mentally ill as well as considerably revising the procedure for the appointment of guardians for insane or deaf and dumb persons and persons non. compos mentis under the provisions of Chapter 49-6 of the Annotated Code. It is well to note that 49-601 of the new Health Code provides for the appointment of guardians for persons who are mentally retarded or mentally incompetent to the extent that they are incapable of managing their estates rather than for the appointment of a guardian for insane persons, deaf and dumb persons, etc., as provided under the old "lunacy commitment law."
I am pleased to call your attention to several sections of the new Health Code which I feel will specifically answer your question, towit:

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"88-513. Current examination of involuntary patient; proeedure to obtain discharge.-(a) After the lapse of three months following the date on which a patient enters a psychiatric hospital as required by court order and not more frequently than every six months thereafter, the patient or his legal guardian, attorney, spouse, parent, or adult next of kin may request the superintendent in writing to cause a current examination by one or more physicians to be made as to the patient's mental condition and the results of such examination reported to such superintendent. If the request is timely, the superintendent shall cause such current examination and report to be made. The patient or his legal guardian, attorney, parent, spouse, or adult next of kin shall have the right to have present and taking part in such examination any duly qualified physician or physicians provided and paid by such patient, but such physicians shall furnish the superintendent a written report of their findings and conclusions. If the superintendent finds upon examining such reports that the patient is no longer mentally ill, he shall discharge the patient and notify immediately the court of ordinary which ordered his involuntary hospitalization. The court will thereupon enter its order discharging such patient from provisions of this Title. If the superintendent finds that the patient continues to be mentally ill, he shall not dis,. charge the patient upon such request. Nothing contained herein shall be construed to impair or infringe upon the right of a patient, his legal guardian or his attorney from having an examination of such patient at reasonable times, at no expense to the State, by one or more physicians or psychologists authorized by law to practice their profession in this State. Such examination may be conducted to the exclusion of all personnel of the institution in which the patient is confined.
"49-605. Notice to ordinary of discharge from psychiatric hospital; subsequent order by ordinary; procedure for termination of guardianship, when ward is not hospitalized or if ward is restored to mental health to the extent he can manage his estate but remains hospitalized.-(a) In the case of a person involuntarily hospitalized in a psychiatric hospital as defined in subsection 88-501 (c) for whom a guardian has been appointed, within 30 days from the date of receipt of a copy of notice of discharge as provided in section 88-511 or subsection 88-512(a), or subsection 88-513(a) or (b), by the court of ordinary which appointed such guardian, said court of ordinary shall enter an order declaring such person no longer mentally ill to the extent that he is incapable of managing his estate, and the guardian of such person shall forthwith deliver over to such person his property, money and effects.
"(b) Any person who has been restored to mental health to the extent that he is capable of managing his estate after having had a guardian appointed for his person or property
may, personally or by attorney, petition the ordinary of the county in Georgia where such person legally resides, setting

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forth the facts and praying for a judgment terminating the guardianship. Such petition may be brought even though such person is still subject to an order of hospitalization in any psychiatric hospital within the control of the Department of Health. Such petition shall be accompanied by a certificate of a physician stating that he has examined such person in person and is of the opinion that such person is no longer mentally ill to the extent that he is incapable of managing his estate. Thereafter, upon notice to the guardian and the three nearest adult relatives of such person residing within the State as defined in subsection 88-506 (b), a hearing shall be set on the issue of whether such person is no longer mentally ill to the extent that he is incapable of managing his estate according to the procedures in section 88-506, and the court of ordinary shall enter its order either denying or granting such petition, with further rights of appeal from the order of the court of ordinary as provided in subsection 88-506 (j) and with costs as provided in section 88-520. (Acts 1964, pp. 499, 660.)"
It is further provided under the provisions of 49-606 that any guardianship or hospitalization which was lawful prior to the enactment of the 1964 Health Code remains valid and that any such guardianship or hospitalization order shall continue subject to the provisions for discharge from hospitalization pursuant to 88-513 of the Georgia Code Annotated and subject to provisions for termination of guardianship as provided in 49-605 of the Code, both cited above.
This is to further advise you that 49-610.1 through 49-610.7 were specifically repealed by the 1964 Health Code and therefore no longer have any force or effect in the restoration of an individual to sanity. Therefore, it is my unofficial opinion that the only method by which restoration to sanity can be accomplished is by following the procedure delineated in the statutes above cited.
December 4, 1964
OPINION TO THE GOVERNOR
I have for acknowledgment your letter of December 2, 1964, enclosing copies of letters in connection with the designation of the Georgia Institute of Techology as the univeristy in this state to receive funds appropriated for the purpose of carrying out the provisions of the Water Resources Research Act (Public law 88-379). You have requested my opinion concerning the eligibility of the Georgia Institute of Technology to receive those grants.
Under the provisions of Public Law 88-379, a participating state may establish and carry on the work of a water resources research institute, center, or equivalent agency at one college or university, "which college or university shall be a college or university established in accordance with the Act approved July 2, 1862 (12 Stat. 503), en-

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titled 'An Act donating public lands to the several States and territories which may provide colleges for the benefit of agriculture and the mechanic arts' or some other institution designated by Act of the legislature". Pursuant to that Act, commonly known as the Morrill Act, the General Assembly of the State of Georgia on December 12, 1866, authorized the establishment of a land grant institution, which institution was formerly designated and named on March 30, 1872, as the "Georgia State College of Agriculture and the Mechanic Arts," which college was a part of the University of Georgia.
Subsequently, by an Act of the legislature in 1885 (Georgia Laws 1885, page 69), a technological school was established for the purpose of providing education in the mechanic arts and engineering as a part of the University of Georgia. The Georgia School of Technology was officially designated and named as the institution to carry out the functions of providing engineering and mechanical arts education by the General Assembly in 1911 (Georgia Laws 1911, page 159).
When the reorganization bill of the State of Georgia was enacted in 1931, the Georgia School of Technology was again recognized as a branch and a part of the University of Georgia (Georgia Code Ann., 32-103).
It is my offical opinion that because of the fact that the Georgia Institute of Technology, by designation of the General Assembly of the State of Georgia, has been charged with the responsibility of providing education in the mechanical arts and engineering areas as a branch of the University of Georgia, that for said purposes the Georgia Institute of Technology may be considered as a portion of the original land grant branch of the University of Georgia.
Based upon this statement of facts and pursuant to the laws heretofore cited, it is my further official opinion that the Georgia Institute of Techology is eligible to participate in and receive grants under the provisions of the Water Resources Research Act (Public Laws 88379). It is not the intent of this opinion to go beyond declaring the Georgia Institute of Technology eligible to receive grants under the aforesaid Public Law 88-379.
December 4, 1964
OPINION TO THE STATE BOARD OF PODIATRY
I have your letter wherein you asked me to rule:
"Whether or not a podiatrist may perform surgery or treatment upon the human foot or leg while the patient is under a general anaesthetic administered by a qualified anesthesiologist other than the podiatrist."
Section 84-601 of the Georgia Code Annotated provides as follows:
"Podiatry (chiropody), for the purpose of this Chapter, means the diagnosis, medical, surgical, mechanical, manipula-

650
tive and electrical treatment limited to the ailments of the human foot and leg. No podiatrist shall do any amputation or use any anaesthetic other than local."
It is clear from the foregoing section that a podiatrist is prohibited from performing two acts: any amputation, or the giving of any anaesthetic other than a local anaesthetic. However, it appears also clear that a podiatrist may perform surgery upon the human foot and leg and may give other treatment, medical, mechanical and otherwise as set forth in the statute, without limitation.
In 70 C.J.S. Physicians and Surgeons 15 (b) (2) (a) (1951), it is said:
"Licenses issued under some statutes are limited with respect to the scope of practice permitted, since persons pretending knowledge and instruction in a pursuit of a particular method and holders of restricted licenses may not practice branches of the art of healing not embraced within the subjects on which the licensee has been examined, and which by his certificate he is authorized to practice. Accordingly, practice outside the scope of the license may not be indulged in by a person licensed to practice chiropody, optometry, and physiotherapy. The legislature in providing for licenses to practice certain specialized branches of the healing art must be assumed to have intended that the methods employed thereunder should bear some rational relationship to the alleviation of human ills."
I consider the foregoing section quoted from the Corpus Juris Secundum to be a fair and accurate statement of the general law; but I call to your attention that in the Georgia law relating to podiatry, specifically 84-601, there is no restriction upon what a podiatrist may do in the treatment of ailments of the human foot and leg. It may be argued or contended that the legislature, by prohibiting a podiatrist from administering an anaesthetic other than local, meant to prohibit the podiatrist from performing surgery or treatment to a patient while under a general anaesthetic. However, it is my opinion that the section cannot be so contrued because there is no limitation or restriction following the provision for surgery. I am of the opinion that if the legislature had intended to restrict podiatrists to operations or surgery such as may be performed only under a local anaesthetic that the legislature would have so provided. I am further of the opinion that the restriction on the podiatrists in the giving of an anaesthetic other than local is for the reason that the legislature deemed a podiatrist lacking in training, education and experience in the giving of a general anaesthetic. In this connection, see State v. Catellier, (Wyo.) 179 Pac. 2d 203 (1947),. wherein a chiropodist was charged with manslaughter in the death of a patient where the chiropodist had administered a general anaesthetic, sodium pentothal. The Wyoming statute, like the Georgia statute, prohibited the chiropodist from using "any anaesthetic other than local." This restriction as to the use of anaesthetics by podiatrists appears to be general throughout the various state statutes. See also State of Idaho v. Armstrong, 225 Pac. 491

651
(1923), 33 A.L.R. 835, wherein it was held that "to require a chiropodist to obtain the education and license of a physician and surgeon, an osteopath or a chiropractor is not a reasonable regulation."
It is therefore my opinion, in answer to your question, that a podiatrist may perform surgery and/or treatment as set forth in 84-601 upon the human foot and leg of a patient who is under an anaesthetic other than local, provided that the said anaesthetic is administered by a qualified anesthesiologist other than the podiatrist.
December 8, 1964
JUSTICES OF THE PEACE
Thank you for your recent letter enclosing copies of several documents alleging the ineligibility of Mr. Jay Brown to assume the office of Justice of the Peace for the 1050th Militia District of Union County, and requesting that he not be issued a commission for such office.
If the Ordinary of Union County has properly returned Mr. Brown as elected to the above-mentioned office and if such return has not been judicially nullified, then the Governor should follow the return and commission Jay Brown as elected to such office. The performance of the governor's commissioning duty under the Georgia Election Code is ministerial in nature. See Georgia Code Ann. 34-1508 (a).
If it is later judicially determined that Mr. Brown is ineligible to assume the office in question, then the subsequent commissioning of the proper person would automatically nullify the earlier commission. See Georgia Code Ann. 34-1508 (b).
December 10, 1964
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your letter requesting my opinion on whether the State Board of Corrections may presently enter into agreements for utility services at the proposed maximum security prison to be located in Butts County, Georgia.
Your letter indicates that the facilities to be incorporated into the prison have not been finally determined; that the amount of electrical current required is necessarily undetermined; that the type load (steady or variable) remains unascertainable; and that the beginning date of operation of the facility is yet to be determined.
In light of the above facts, it is my opinion that a contract entered into at this time would be unenforceable for lack of certainty.
Although the law does not favor destruction of contracts as grounds of uncertainty, Sunshine v. Ben Lewis, Inc., 86 Ga. App. 746, 72 S.E.

652
2d 485 (1952), it is one of the fundamental premises of contract law that the agreement must posses sufficient "certainty" to enable either party to sue thereon. Parks v. Harper, 43 Ga. App. 269, 158 S.E. 454 (1931); WeUs v. H. W. Lay & Co., 78 Ga. App. 364, 50 S.E.2d 755 (1949). It is my opinion that it would be impossible to enforce a contract containing neither a maximum amount figure, the type load required nor the beginning date of service The basic concept of contractual certainty of quantity is expressed in 17 C.J.S. Contracts 36 (2) (e) (1963) in which it is stated that, "a contract indefinite as to quantity is unenforceable where there is nothing in the contract from which the quantity may be implied and there is no outside standard on which parol evidence may be given to fix the quantity ...."
An exception to the general rule of "certainty" is required by business practice in "requirement contracts;" but this is inapplicable as "requirement contracts" have been defined in 17 C.J.S. supra. as "a contract binding a party to purchase of the other what he may require ..., as long as the party has established requirements." (Emphasis added)
It is well established in Georgia that although the terms of a contract need not be stated in minute detail it is essential to a contract that the nature and extent of the obligations be certain. See: Pe1psi-Cola Co. v. Wright, 187 Ga. 723, 2 S.E.2d 73 (1939); Weill v. Brown, 197 Ga. 326, 29 S.E.2d 54 (1944) ; Martin v. Sunset Hill Memorial Gardens, 212 Ga. 159, 91 S.E.2d 44 (1956).
Although "certainty" of agreement is a relative concept which permits of no fixed standards, it is my opinion that insufficient facts are presently available to permit the Board to enter into an enforceable electrical service contract.
December 10, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for my opinion as to whether property acquired by an Urban Renewal Authority is subject to ad valorem taxes for the year of purchase and in subsequent years.
Section 69-1112(b) of the Georgia Code Annotated, which is set out below, answers your question as to the ad valorem taxability of Urban Renewal property.
"(b) The property of a municipality, acquired or held for the purpose of this Chapter [Chapter 69-11. URBAN REDEVELOPMENT], is declared to be public property used for essential public and governmental purposes and such property shall be exempt from all taxes of the municipality, the county, the State or any political subdivision thereof: Provided, that such tax exemption shall terminate when the municipality sells, leases or otherwise disposes of such property in an urban rede-

653
velopment area to a purchaser or lessee which is not a public body."
As to whether property acquired by a governmental authority is subject to the ad valorem tax for the year in which it is acquired, you are referred to 92-5708, Georgia Code Annotated, which states that the lien for the ad valorem tax covers the property of the taxpayer "from the time fixed by law for valuation of the same in each year until such taxes are paid." Since the lien attaches as of the valuation date, the liability of the property for the taxes for the year for which the lien attached would not be affected by a conveyance of the property during such year to a municipality.
December 10, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request (accompanied by a letter to you of December 1, 1964, from Mr. John W. Williford) for my opinion on whether property acquired by an Urban Renewal Authority is subject to ad valorem taxes for the year of purchase and in subsequent years.
Section 69-1112 (b) of the Georgia Code Annotated, answers your question as to the ad valorem taxability of Urban Renewal property. It states:
"(b) The property of a municipality, acquired or held for the purpose of this Chapter [Chapter 69-11. URBAN REDEVELOPMENT], is declared to be public property used for essential public and governmental purposes and such property shall be exempt from all taxes of the municipality, the county, the State or any political subdivision thereof: Provided, that such tax exemption shall terminate when the municipality sells, leases or otherwise disposes of such property in an urban redevelopment area to a purchaser or lessee which is not a public body."
As to whether property acquired by a governmental authority is subject to the ad valorem tax for the year in which it is acquired, you are referred to Georgia Code Ann. 92-5708, which states that the lien for the ad valorem tax covers the property of the taxpayer "from the time fixed by law for valuation of the same in each year until such taxes are paid." Since the lien attaches as of the valuation date, the liability of the property for the taxes for the year for which the lien attached would not be affected by a conveyance of the property during such year to a municipality.

654
December 11, 1964
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your request for an official opinion on certain questions concerning the intangibles tax on long term notes secured by real estate.
Your questions particularly concern the procedures that have been followed by the First Federal Savings and Loan Association of Columbus, Georgia, in paying the intangibles tax at the time of filing the instruments securing long term notes as required by Chapter 92-1 of the Georgia Code Annotated, particularly 92-164 and 92-175.
On December 15, 1954, I rendered an opinion (Ops.. Att'y Gen. 787 (1954-56)) to the State Revenue Commissioner, on twenty (20) distinct questions pertaining to the provisions of the Intangible Property Tax Act of 1933 (Georgia Laws 1953, p. 379) concerning the tax on longterm notes secured by real estate.
In a letter dated March 21, 1955, I stated unofficially that it is my opinion that no intangible tax is due on the recording of a long-term note which is merely the unpaid balance of an old note on which the tax was paid (Ops. Att'y Gen. 783 (1954-56)) .That unoffical opinion of March 21, 1955, was merely another application of the answer to Question 20 in the Offical Opinion of December 15, 1954.
An expression of my opinion in the areas covered by your questions, set out below, can be found therein, particularly in the answers to Questions 11 (a) and 20 of the formal opinion, and in the informal opinion of March 21, 1955, as it specifically applies the opinion expressed in the answer to Question 20.
First Federal Savings and Loan Association (Procedure and Questions):
"1. When a loan is made maturing in more than three years we pay the State of Georgia intangible taxes on the exact amount as set forth in the security deed instrument.
"2. When we have made a loan and paid the required State of Georgia intangible taxes as set forth in sub-paragraph (1) above, and it becomes necessary for us to make advances or extend the payments for the purpose of paying ad valorem taxes, insurance premiums and repairs, we do not pay any additional State of Georgia intangible taxes on that instrument.
"3. When we have made a loan and paid the required State of Georgia intangible taxes as set forth in sub-paragraph (1) above, and it becomes necessary for us to modify the method of payments, extend the method of payments or renew the same loan, we do not pay any additional State of Georgia intangible taxes thereon.
"4. When we have made a loan and paid the required State of Georgia intangible taxes as set forth in subparagraph (1) above, and the borrower has paid that loan down

655
one-half and desires that we make a new note and security deed for the same amount as the original instrument, we cancel out the original note and security dead when we make the new note and security deed back to the original amount and we pay the full State of Georgia intangible taxes on the new loan. The examiner says that we should pay only State of Georgia intangible taxes on one-half, that being the new money. Are we right or is the examiner right?
"5. When we have a loan and paid the required State of Georgia intangible taxes as set forth in sub-paragraph (1) above, and the borrower pays the original indebtedness down one-half and then desires to make a new second loan just for sufficient money to bring the amount to the original loan, and he executes and delivers a second security deed and note just for an amount necessary to bring the total of the first and second security deeds back to the original indebtedness, we pay the State of Georgia intangible taxes on that second security deed instrument. The examiner says that we should not, and that other associations in Georgia are not doing so. Are we right or is the examiner right?"
Georgia Code Ann. 92-164 speaks of the "face amount of the note or notes" secured by real estate. This is the "original indebtedness" (as mentioned in the aforementioned opinions) on which the intangibles tax is paid at the time of recording the security instrument. This "original indebtedness" on which the tax has been paid when the instrument securing it was recorded is not a tax-free "line of secured credit" but is reduced in amount as the note or notes evidencing it are paid in total or partially. Any long term note secured by real estate evidencing indebtedness beyond the remaining balance of the "original indebtedness" is subject to the tax imposed by 92164 on the amount of the new or additional indebtedness.
Questions raised by the bank are specifically answered as follows:
Item (2) above: Extension of payments on the original indebtedness is not subject to the intangibles tax, but any advances beyond the remaining balance of the "original indebtedness" qualifying as long term notes secured by real estate are subject to the tax.
Item (3) above: The practice followed is in accordance with my previously expressed opinions (identified above).
Item (4) above: The examiner's opinion conforms with my previously expressed opinion (identified above).
Itern (5) above : The bank is right in paying on the "new indebtness". The Examiner's position here is not consistent with his position as expressed in Item (4) above.
The foregoing applications of my previously expressed opinions have been made as they would apply generally and without recognition of the identity of the taxpayer.

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December 11, 1964
OPINION TO THE TEACHERS' RETIREMENT SYSTEM
You asked that we review the Teachers' Retirement Act, particularly section 5, subsections (3) and (4), concerned with disability retirements and death allowances, and give you our opinion concerning a dispute over the amount of allowance which is due a beneficiary on death of the member in service.
The situation concerns a member who has recently died, being 63 years of age at time of death, and having 46 years' service. His wife had been designated as beneficiary.
The particular subsections to which you make reference are found in Georgia Code Ann. 32-2905, Subsections (3) and (4), and read as follows:
"(3) Disability retirement benefit. (a) Any member in service, upon death, shall be entitled to an allowance in accordance with the provisions set forth in subsection (4) of this section.
"(b) Any member in service may be retired by the Board of Trustees on a disability allowance upon written application to the Board of Trustees made by such member or his employer, not less than 30 days or more than 90 days subsequent to the execution and filing thereof, provided such member has 15 or more years of service, and provided the medical board, after a medical examination of such member, shall certify that he is mentally or physically incapacitated for further performance of duty, and that such incapacity is likely to be permanent and that he should be retired.
" (4) Allowance on disability retirement or death. In accordance with subsection (3) of this section, upon disability retirement, or death, a member shall receive the equivalent of a service retirement allowance if he has attained age 65, otherwise he shall receive a disability allowance or death allowance, as follows:
(a) Said member's disability or death allowance shall be computed as a service retirement allowance on the basis of his creditable service and compensation up to the time of disability or death, as if he had attained the age of 65.
(b) In the application of the above relating to death allowances, computation shall be made on the same basis as though Option 2 as provided in subsection (8) of this section had been in effect: Provided, upon death of the member there is a named living beneficiary; otherwise the total amount of the member's contributions to the time of his death shall be payable to his estate."
In applying these two subsections, the Retirement System has been utilizing two allowances tables: one, known as the Service Retirement

657
Table; the other, which is seemingly reduced, known as the Disability Allowance Table. In death cases, the Teacher's Retirement System has been using the second set of allowance tables, the Disability Allowance Tables. Such action was based upon the opinion of the actuary that reduced tables should be used for disability retirements, as both allowances are under the same subsection, and the allowances should be the same for either death or disability.
Now, however, a member's beneficiary is contending that Paragraph (a) of Subsection (4), stating that a "death allowance shall be computed as a service retirement allowance", means just that, and that application of any disability table is erroneous. After much thought on this matter, I find myself in agreement with the beneficiary on this point. While it would probably be desirable actuarily to utilize a reduced allowance table, in view of the language of Paragraph (a), I do not believe any table other than the Service Retirement Allowance Table could be utilized.
A careful examination of Subsections (3) and (4) leaves me with the impression there was an intention to accomplish the result which has been attributed to the section by the Retirement System and the actuary in the past. However, there seem to have been some inadvertent changes or omissions during its passage by the Legislature which resulted in an effect different from that intended. Perhaps remedial legislation could be introduced to alter the section and make it read more precisely as originally intended.
December 21, 1964
OPINION TO THE GEORGIA FORESTRY COMMISSION
I am pleased to acknowledge receipt of your recent letter in which you request my opinion as to whether or not the Georgia Forestry Commission falls within the provisions of the 1964 Georgia Administrative Procedure Act (Georgia Laws 1964, p. 338).
I am pleased to call your attention to the wording of Section 2 of the Administrative Procedure Act which, inter alia, defines the term "agency" as any "state board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases...." Section 2 (a), therefore, determines coverage less the following specific exemptions:
(1) The governor; the judiciary; and the General Assembly;
(2) All public authorities; (3) The Board of Pardons and Paroles; (4) The State Board of Probation; (5) The Board of Corrections and its penal institutions; (6) State Personnel Board; (7) State Supervisor of Purchases; (8) The regulation of Liquor and alcoholic beverages;

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(9) Any school, college, hospital or other such educational, eleemosynary or charitable institution;
(10) Any agency when its action is concerned with the military or naval affairs of this State;
(11) State Board of Workmen's Compensation; (12) The Public Service Commission.
There are also other limitations on coverage. For example, the Act is only concerned with State agencies and with such administrative functions as rule-making and adjudications. It appears, therefore, that the sole purpose of the Administrative Procedure Act is to achieve uniformity in reference to basic areas (and in so doing to equip each agency with the means of achieving statutory purposes) and to provide ample safeguards in protecting the public interest.
I have reviewed the laws applicable to the Georgia Forestry Commission and while I find that the Georgia Forestry Commission is authorized under the provisions of 43-213 of the Georgia Code Annotated to adopt all rules, regulations and methods of administration necessary for the efficient operation of the activities of such Commission, it is nevertheless my opinion, after reviewing the rules and regulations which have been promulgated by the Commission, that they are not subject to the provisions of the Georgia Administrative Procedure Act.
I am pleased to call your further attention to Section 2 (f) of the Administrative Procedure Act which specifically excludes the following types of rules :
"1. statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public ;
* * * *
"3. intra-agency memoranda;
* * * *
"6. rules which relate to the acquiring, sale, development and management of the property (both real and personal) of the State or of an agency;
"7. rules which relate to contracts for the purchases and sales of goods and services by the State or an agency;
"8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency."
After a careful review of the rules, regulations, procedures, forms and standards issued or prescribed by the Georgia Forestry Commission, it is my official opinion that such rules and regulations and policies fall within the exclusions itemized above in that they specifically deal with internal operational activities and/or contracts for the sale of services by the Commission as an agency of the State government, and therefore do not come under the provisions of the Georgia Administrative Procedure Act.

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December 30, 1964
OPINION TO THE GOVERNOR
The problem presented involves the legal question as to whether Mr. Preston B. Lewis, Jr., who has been elected to the State Hous.e of Representatives from Burke County to take office January 1965, may at the same time hold the position of Solicitor of the City Court of Waynesboro, Georgia.
The State Honesty Law of 1959, set out in Georgia Laws 1959, page 34, provides in 7 as follows :
"Enforcement of the Sep,aration of powers provision of the Constitution. To the end that the mandate of the Constitution contained in Article I, I, Paragraph XXIII, to the effect that 'the legislative, judiciary and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same 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 government of the State of Georgia, or any agency thereof, or in the judicial branch of government; (b) judges of courts of record of their clerks and assistants, to accept or hold office or employment in the executive branch of the government of the State of Georgia, or any agency thereof, or in the legislative branch 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 compensation of money in violation of this section shall be guilty of a misdemeanor...."
This section of the 1959 Honesty Law would prohibit Mr. Lewis from being a Member of the General Assembly and holding office as the Solicitor of the City Court of Waynesboro if that court is a part of the executive branch or the judicial branch of the government of the State of Georgia.
The City Court of Waynesboro as it now exists was established by Georgia Laws 1903, page 174. The court thus created had countywide jurisdiction and provided for the solicitor to represent the State in the Supreme Court. Such services were to be paid for out of the treasury of the State by warrant drawn by the Governor upon certificate of the Clerk of the Superior Court of the State of Georgia. By the provisions of Georgia Laws 1949, page 1737, amending the 1903 Act creating the City Court of Waynesboro, the provision for payment for services in representing the State in the Supreme Court was reiterated and the annual compensation therefor was increased.
Many city courts have been established in cities and in small county sites which have been chartered as cities (sixty-seven such county courts being listed in Volume 47 of the Georgia Appeals Reports), and the City Court of Waynesboro is among them. Such

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courts, commonly called "Constitutional City Courts", are not courts of the municipalities in which they are located, but are State courts, having original jurisdiction, generally in all civil cases except such as is vested exclusively in the Superior Courts, and for the trial of misdemeanors. Territorially, jurisdiction usually embraces the counties in which they are located, and each is created by a special act of the General Assembly.
The 1903 Act creating the City Court of Waynesboro provides that the Court has jurisdiction to try and dispose of all civil cases of whatsoever nature, except in those cases over which exclusive jurisdiction is vested in the superior courts by the Constitution and laws of Georgia, and that the Court likewise has jurisdiction to try and dispose of all criminal cases committed in the County of Burke when the offender is not subjected to loss of life or to confinement in the penitentiary. The 1903 Act also provides that the Court is a court of record.
Georgia Laws 1951, at page 2369, further amended the City Court of Waynesboro law and provided that it is the duty of the Solicitor of that Court to represent the State in all cases in said Court, and in cases carried up to the Supreme Court from the City Court to which the State is or may be a party, and that he is to perform such other duties as usually appertain to the office. The 1951 amendment further provided that the City Court Solicitor is entitled to receive and retain in addition to his salary the same fees in all civil cases to which the State is a party that are allowed to the solicitors-general for like services in the superior court; and, in addition, he is to receive the same fees paid to solicitors-general for services in representing the State in the Supreme Court, to be paid out of the treasury of the State.
It is my opinion that the City Court of Waynesboro is in the judicial branch of the government of the State of Georgia. It is my further opinion that regardless of whether the office of the Solicitor of the City Court of Waynesboro is in the judicial branch of the government of the State of Georgia, or in the executive branch of the government of the State of Georgia, that the holder of said office would be prohibited from being a Member of the General Assembly of the State of Georgia by virtue of the provisions of the 1959 Honesty Bill.
In the event Mr. Lewis should resign as the Solicitor of the City Court of Waynesboro, it would be the duty of the Governor to fill the vacancy under the provisions of Georgia Code Ann. 40-301.
December 31, 1964
OPINION TO THE GOVERNOR
This will reply to your letter of Dec. 28, 1964 in which was enclosed the certification of the Secretary of State of the votes cast for and against Constitutional Amendment No. 40 concerning Cobb County. You point out that no separate vote is shown for the various political subdivisions within Cobb County and ask if you are authorized to

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proclaim passage of the Amendment.
Your attention is directed to the pertinent portion of Article XIII, Section I, Chapter 2-81 of the Constitution of Georgia of 1945, codified unofficially as 2-8101 of the Georgia Code Annotated, dealing with Amendments to the Constitution, not general in nature but affecting only a particular local area of the State, which provides:
"A proposed amendment which is not general shall only be submitted to the people of the political subdivision or subdivisions directly affected. The vote 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 word "subdivision" as used in the above Section has been defined to mean a "political subdivision" in Towns v. Suttles, 208 Ga. 838, 840 (1952).
Since Constitutional Amendment No. 40 affects both the incorporated and the unincorporated areas of Cobb County, it would appear that you are without authority to proclaim passage of the Amendment until evidence is submitted to you that the Amendment has been ratified by majority vote of the electors voting in each of the incorporated areas of Cobb County, as well as by a majority of electors voting in the unincorporated area of said county.
December 31, 1964
OPINION TO THE SUPERIOR COURT CLERKS' RETIREMENT FUND OF GEORGIA
I have your letter requesting my opinion as to whether or not the Superior Court Clerks' Retirement Fund of Georgia comes under the provisions of the Georgia Administrative Procedure Act as approved by the 1964 session of the General Assembly.
The Superior Court Clerks' Retirement Fund of Georgia was created by Act of the General Assembly, set out in Georgia Laws 1952, page 238 (Georgia Code Ann. 24-2732, et seq.). Code Section 24-2735 specifically provides that the Board may make all necessary rules and regulations not inconsistent with the laws of the State of Georgia, and 24-2745 provides that the State Auditor is authorized and directed to make an annual audit of the acts and doings of the Board and to make a complete report of same to the legislature.
This, in my opinion, would bring the Superior Court Clerks' Retirement Fund within the definition of "agency" as set out in Section 2 of the Georgia Administrative Procedure Act of 1964.

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However, Section 2, subsection (f), under the definition of "Rule," states, in part:
"(f) 'Rule' means each agency regulation, standard or statement of general or particular applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the rules of practice and procedure for the approval or prescription for the future of rates and prices and the amendment or repeal of a prior rule but does not include the following:
* * * *
"8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency;
"9. rules relating to loans, grants and benefits by the State or of an agency."
Because of this specific exclusion relating to rules dealing with retirement, it is my opinion that the rules and regulations of the Superior Court Clerks' Retirement Fund of Georgia do not come under the provisions of the Georgia Administrative Procedure Act.
December 31, 1964
MATERIALMEN'S LIENS
The question posed is:
"Do subcontractors and materialmen supplying goods to be used on non-profit, private hospitals being financed in part under the Hill-Burton Act retain their rights under the Georgia Lien Law, or must they proceed under the Miller Act or some other Federal Act in order to protect their rights against the owner of the building in the event they are not paid by their immediate contractor?"
We find no reference in Georgia laws to grants made by the State of Georgia as a participant in the construction of a non-profit private hospital financed in part under the Hill-Burton Act. It is our understanding that the State of Georgia merely acts as a transmittal agent for the disbursement of funds received in the form of grants from the Federal agency in connection with construction jobs on nonprofit private hospitals. We have not researched the Federal law with respect to whether a subcontractor or materialman must proceed under the Miller Act or some other Federal statute, and would suggest that
Mr. Carl Harper
Regional Counsel for the Department of Health, Education, and Welfare, be contacted in this connection.
If it should be determined that there are no statutory requirements that such subcontractors and materialmen proceed under the Miller Act or some other statute, it would be our offhand opinion that such parties would retain their rights under the Georgia Lien Law.

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January 5, 1965
OPINION TO THE SUPERVISOR OF PURCHASES
In accordance with your request, we have reviewed the letter from Mr. Robert E. Baxter, Coordinator of the A. P. Jarrell Pre-Vocational Evaluation Center, of the Department of Education.
Mr. Baxter has pointed out that until recently the Atlanta Association for Retarded Children has been paying for all expendable supplies purchased at the center. Such supplies are used in training retarded students at the cafeteria, a personal service unit, a general shop, and an automobile service station.
Charges are made to customers who patronize the cafeteria and service station, as a result of which, in effect, the costs of such supplies are ultimately recovered.
Effective January 1, 1965, the center has had to undertake the underwriting for the purchase of expendable supplies, and it has asked whether it may continue to purchase such supplies as needed on a local basis, or whether it must order through the Purchasing Department and adopt competitive bidding procedures.
In view of the fact that the supplies are in large part perishables which are normally exempt by the Purchasing Department from the requirements for competitive bidding and the following of other Purchasing Department procedures, and further, in view of the fact that the cost of such supplies is normally recovered through subsequent sale at the cafeteria and service station, we believe that it will be appropriate to consider the purchase of such supplies an emergency purchase and a purchase of perishables, so that, at least for the time being, the center may continue to purchase the supplies as it has in the past. We believe it would be desirable that you ask Mr. Baxter to report to you from time to time the volume and nature of any such purchases so that you may review the same and determine whether it would be in the best interest of the State for the Purchasing Department to supervise the purchases directly, but in the meantime, as a practical matter, Mr. Baxter should be allowed to continue as he has in the past.
We will keep this matter under advisement, and if we find there is any legal prohibition against the procedure suggested above, we will advise you promptly.
January 5, 1965
OPINION TO THE COMPTROLLER GENERAL
This is in reply to your letter requesting my official opinion as to whether or not a group policy issued to an employer to cover employees under 56-2701 (1) of the Georgia Insurance Code of 1960 (Georgia Code Ann. 56-2701 (1)) may legally include directors who

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are not otherwise eligible as bona fide employees performing duties other than those of directors.
You point out that 56-2701 (4) (a) of the Code which is applicable to trustee groups contains a condition that no director of a corporate employer shall be eligible for insurance unless such person is otherwise eligible as a bona fide employee. [Research reveals, as you further pointed out, that such a condition was contained in the original bill introduced in the 1959 Session of the Legislature which adopted the Insurance Code of 1960 but was not contained in the final bill as adopted.]
Section 56-2701 (1) (a) of the Insurance Code provides:
"The employees eligible for insurance under the policy shall be all of the employees of the employer, or all of any class or classes thereof determined by conditions pertaining to their employment. The policy may provide that the term 'employees' shall include the employees of one or more subsidiary corporations, and the employees, individual proprietors, and partners of one or more affiliated corporations, proprietors or partnerships if the business of the employer and of such affiliated corporations, proprietors or partnerships is under common control through stock ownership or contract or otherwise. The policy may provide that the term 'employees' shall include the individual proprietor or partners if the employer is an individual proprietor or a partnership. The policy may provide that the term 'employees' shall include retired employees. No individual proprietor or partner shall be eligible for insurance under the policy unless he is actively engaged in and devotes a substantial part of his time to the conduct of the business of the proprietor or partnership. A policy issued to insure the employees of a public body may provide that the term 'employees' shall include elected or appointed officials."
The language used in this section requires the conclusion that a corporate director, in order to be eligible to be included in a group policy issued pursuant to its provisions, must qualify as an "employee" of the employer. This raises the question as to whether or not a director, acting in this capacity alone, is in fact an "employee" of the corporate employer.
It has been held that an officer of a corporation who performs no services and receives no compensation is not to be included as an eemployee under the Unemployment Tax Act. Personal Finance Co. of Braddock v. U.S., D.C. Del., 86 F. Supp. 779, 786 (D.C. Del. 1949). The case of Deecy Products Co. v. Welch, 124 F.2d 592, 595, 139 A.L.R. 916 (1st Cir. 1941), held that the provisions of the Social Security Act that the term "employee" includes an officer of a corporation means that an officer can be an employee, that is, if he meets the tests determinative of the ordinary employment relationship he is an employee and the fact that he is also an officer does not destroy his status as an employee under the Act. Similarly, a New Jersey case has held that the mere ability of a corporate officer to be an employee of the corporation does not automatically-make an officer a corporate

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"employee" within the intendment of the Workmen's Compensation Law simply because he performs some service for or in the interest of the corporation, but in order for such officer to be an employee, he must perform services for the corporation for financial consideration. Johnson v. U.S. Life Ins. Co. of N.Y., 74 N.J. Super. 343, 181 A.2d 380 (1962).
"A director, as such alone, is not considered an 'employee' .... Though a director may, in a sense, be considered a corporate officer, he exercises his office only through the collective action of the Board of which he is a member. A director has no individual power to action as does an officer who is usually elected or appointed to perform specific duties as agent of the corporation by the Board of Directors." Georgia Casualty and Surety Co. v. Seaboard Surety Co., 210 F. Supp. 644 (1962). Vardeman v. Penn Mutual Life Ins. Co., 125 Ga. 117 (1906).
A director or officer of a corporation is not, by virtue of his office, its employee. Shriver v. Carlin and Fulton Co., 155 N.D. 51, 141 Atl. 484, 58 A.L.R. 767 (1928); Mason v. Curtis, 223 N.Y. 313, 119 N.E. 559 (1918). Rather, a director is a part of an elective body of officers constituting the executive representatives of the corporation. However, a director's occupancy of such office does not disqualify him from becoming its employee where the duties and incidents of his employment are separate and distinct from those pertaining to his office. Shriver v. Carlin and F. Co., supra.
The apparent conclusion based upon the foregoing cases is that a director, in this capacity alone, is not an employee of the corporation or employer. There being no provisions in 56-2701 (1) of the Georgia Insurance Code of 1960 to authorize the eligibility of a director under this section in any capacity other than as an employee, he must in fact be a bona fide employee actively engaged in the conduct of the business of the employer aside from his duties as a director of the corporation in order to be eligible.
The legislative intent, is, in my opinion, properly expressed by this conclusion in view of the fact that there were no provisions made in this section to include anyone as eligible other than "employees" except for the provision making individual proprietors and partners eligible. The legislative intent of limiting the eligibility to only those persons actively engaged in the business of the employer is further expressed by the language limiting the eligibility of individual proprietors and partners to those who are "actively engaged in and devote a substantial part of his time to the conduct of the business of the proprietor or partnership."
It is, therefore, my opinion that a group policy issued to an employer to cover employees under 56-2701 (1) of the Insurance Code may not legally include directors who are not otherwise eligible as bona fide employees performing duties other than those of directors.

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January 7, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
Georgia Institute of Technology has submitted to us for consideration and advice, documents from the National Science Foundation, including an Assurance of Compliance with NSF Regulation, under Title VI of the Civil Rights Act of 1964, together with the regulations which have appeared in the Federal Register; also, a communication from the Department of Health, Education and Welfare, the Office of Education, including an Assurance of Compliance with the Department of Health, Education and Welfare Regulation, under Title VI of the Civil Rights Act of 1964, together with regulations promulgated after publication in the Federal Register.
We have examined the Assurances of Compliance, together with the regulations referred to above, and it is our opinion that it is in order for Georgia Tech to sign the Assurances of Compliance. The University of Georgia and the Board of Regents (191 F. Supp. 394 (M.D. Ga. 1961)), and Georgia State College 172 F. Supp. 847 (N.D. Ga. 1959) are presently under Federal Court Orders with respect to discrimination against Negro applicants for admission, and availability and use of facilities and opportunities in said institutions. These Court Orders, for all practical purposes, embrace and are applicable to all units in the University System.
All of the units in the University System are presently in full compliance with the requirements of the Civil Rights Law of 1964, and are in compliance with the regulations which have been issued by the National Science Foundation and the Department of Health, Education and Welfare.
It is our opinion that it is proper and in order for the Georgia Institute of Technology to execute the Assurances of Compliance that have been submitted to it by the Federal agencies above referred to.
January 8, 1965
OPINION TO THE DEPARTMENT OF STATE PARKS
We are in receipt of your recent letter concerning the proposed construction of a boat launching ramp on Chehaw State Park, Albany, Georgia.
You have advised that the Georgia Power Company has requested that the department provide it with an agreement pursuant to which the department would indemnify the company in the event of any accident which might occur through the use by the public of the launching ramp. The lake upon which the ramp is to be built is owned by the Georgia Power Company.
Since the Department of State Parks, as an agency of the State, enjoys the sovereign immunity of the State, it could not be sued

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directly for any injuries arising out of the use of the ramp. By the same token, we feel that it would not be appropriate for the Department to undertake to assume the liability, if any, of the Georgia Power Company, a private concern.
We hope that you will be able to obtain permission to construct the ramp without any such undertaking, inasmuch as such an undertaking would be legally unenforceable.
.January 11, 1965
OPINION TO THE PUBLIC SERVICE COMMISSION
This letter is written in response to your request for a definition of the regulatory jurisdiction of the Georgia Public Service Commission over pipe line carriers engaged in the transportation of petroleum and petroleum products.
The scope of Commission jurisdiction over this class of carrier is stated in an Act of the General Assembly, approved February 26, 1943 (Georgia Laws 1943, pp. 1662-64; Georgia Code Ann., Ch. 36-12) providing that "corporations engaged in constructing, running or operating pipe lines in this State as common carriers in interstate or intrastate commerce for the transportation of petroleum and petroleum products shall have the right of eminent domain ... " for the purpose of engaging in such transportation. Section 3 of the Act (Georgia Code Ann. 36-1203) provides in effect that only the corporations which may exercise the power of eminent domain are those "operated as common carriers under such rules and regulations of the Georgia Public Service Commission as may apply to them and similar utilities."*
This grant of jurisdiction to the Commission is rather vague, and therefore, I believe it would be best for the General Assembly at this session to clarify this matter in one of two ways.
*Code Section 93-307 empowers the Commission to regulate "all common carriers", however, the Georgia Supreme Court held in Estes v. Perry 167 Ga. 902 (1929), that the Commission has no jurisdiction under such Code provision to regulate and control the business of common carriers other than the classes of common carrier corporations specifically mentioned therein and that the powers so conferred do not extend to the regulation of persons operating motor-busses on the highways of Georgia. Also, it should be noted that the Act, approved February 17, 1956 (Georgia Laws 1956, pp. 104-10; Georgia Code Ann., Ch. 93-7) authorizing the regulation of intrastate pipe line systems by the Commission only applies to systems transporting, distributing, or selling "natural or manufactured gas" (Ga. Code Ann., Sec. 93-701) and specifically exempts "liquified petroleum gas sold in liquid form under pressure" from regulation under the Act (Georgia Code Ann. 93-711).

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If the General Assembly desires for the Commission to effectively regulate this matter, I recommend that the Act empowering the Commission to regulate natural and manufactured gas systems operating in intrastate commerce within Georgia (Georgia Laws 1956, pp. 104-10; Georgia Code Ann., Ch. 93-7) be broadened to include regulation of the intrastate transportation of petroleum and petroleum products by pipe line carriers.
On the other hand, if the General Assembly desires that the transportation of petroleum and petroleum products by pipe line be deregulated, I recommend that the reference to Commission regulation in the 1943 Act be deleted.
January 14, 1965
OPINION TO THE INSURANCE COMMISSIONER
This will acknowledge receipt of a copy of the Petition for Merger of Atlantic American Life Insurance Company, a Georgia Corporation, with Empire Life Insurance Company and the Sureway Life Insurance Company, both South Carolina Corporations, in which the surviving corporation will be a Georgia Corporation.
I have reviewed the petition and merger agreement and it is my opinion that should they be granted, they will enable the surviving corporation to comply with the applicable insurance laws of Georgia.
January 18, 1965
OPINION TO THE DEPARTMENT OF STATE PARKS
We are in receipt of your letter relative to the proposed construction of an air strip on a portion of Magnolia Springs State Park in Jenkins County.
Under the proposal, the City of Millen and the County of Jenkins would jointly clear, construct, pave, light, and furnish operational equipment for an air strip. There would be no cost to the Department of State Parks except the loss of the use of the land for other purposes.
It is our opinion that use of the land for the purpose of the construction of an air strip, even at no cost to the Department, cannot legally be authorized on less than specific approval by the General Assembly. Even though title would be retained by the Department of State Parks, the land nevertheless would be encumbered, and such an encumbrance as you propose, not being of a type already authorized for the Department, would require additional specific legislation.
Further, you asked whether timber cleared from the area could be given to the county for grading work which they will do in con-

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nection with the air strip. Even if the project were otherwise legal, and we have found that it would not be without legislative approval timber could not be given to the county under the circumstances which you propose. Normally, timber cleared from a State park would be disposed of as surplus property in the manner with which you are familiar. Of course, if the clearing of the area were an act of value to the Department for which you would propose to give surplus timber rather than pay money, it is possible that this might be worked out and specifically authorized at the same time that the Legislature also authorizes the project as a whole.
However, as previously noted, unless there is specific legislation authorizing this project and spelling out the details, we do not believe that it lawfully could be carried out.
January 18, 1965
EXPENDITURE OF COUNTY FUNDS
This is in reply to your letter wherein you inquire as to whether a county may legally expend county funds to equip the office of county school superintendent in the county courthouse. You refer to the fact that Georgia Code Ann. 32-1012, which provides:
"The county authorities of the different counties shall furnish the county superintendent of schools thereof an office in the courthouse, provided there is sufficient room in said courthouse after furnishing the county officers with offices as now provided by law."
does not expressly state that the office be furnished.
I am of the opinion that where a county has provided its school superintendent with an office in the county courthouse, it is required to furnish and equip such office.
DISCUSSION
While Georgia Code Ann. 32-1012 does not expressly state that an office provided for the county school superintendent in the county courthouse shall be furnished by the county, Georgia Code Ann. 91-704 provides:
"It shall be the duty of the ordinary or board of county commissioners, or other county authority having the management of the revenues of the county, to furnish coal, wood, lights, furniture, stationery, records, and office supplies in general, for the different county offices of the county, at the expense of the county: Provided, that this section shall apply only to the offices of said officers in the courthouse in said county." [Emphasis added]
It would seem to be beyond question that the postion of county school superintendent is a constitutional "county office" under Article

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VIII, Section VI, Par. I of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-6901), and consequently I am of the opinion that Georgia Code Ann. 91-704 not only permits, but actually places a "duty" upon the county authorities of providing furniture for the office of the superintendent. See also Floyd County v. Graham, 24 Ga. App. 294 (1) (1919), [where the court held a telephone to be covered by the phrase "office supplies generally"] . See also Ops. Att'y Gen. 68 (1960-61).
January 20, 1965
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
I am in receipt of your letter in which you requested my opinion on the constitutionality of the act set forth in Georgia Laws 1957, p. 420, as amended, insofar as that act purports to establish area planning commissions comprised of two or more counties and/or two or more cities within an area and in different counties.
This question was in effect answered by me in my opinion to your predecessor, Honorable Jack Minter, dated October 28, 1960. In that opinion, I stated that if the county governing authorities and the governing authorities of the county seat of each of the counties involved appropriated adopted resolutions and ordinances to effectuate the same, the resulting area planning commission would be legally constituted. That opinion had specific reference to Georgia Laws 1957, p. 420, and to Georgia Code Ann. 2-1923.
I adhere to my ruling contained in the opinion dated October 28, 1960. Further, I might add that the constitutionality of an act generally is to be presumed unless and until the courts hold otherwise in a proper judicial proceeding, unless the act is so patently unconstitutional as to allow no reasonable alternative finding. We have no such problem with the act in question here.
January 21, 1965
OPINION TO THE STATE AUDITOR
This will acknowledge receipt of your request for my opmwn concerning Georgia Laws 1962, p. 73 (Georgia Code Ann. 26-5502)
You asked for my opinion as to the construction of a portion of Georgia Code Ann. 26-5502. Specifically you asked if the reference therein to "picketing, demonstrating, or other riotous conduct" is used in the disjunctive or conjunctive. It is my opinion that the quoted language is used in the disjunctive - that is, the statute prohibits picketing and demonstrating at the locations referred to in the statute unless the required permit has been obtained and such prohibition is applicable whether or not the picketing or demonstrat-

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ing is being conducted in a manner which might be described as riotous.
January 28, 1965
OPINION TO THE STATE AUDITOR
This is to acknowledge your request for my official opinion as to whether the Jekyll Island State Park Authority has the legal authority to construct and operate an airport, and receive and expend state and federal funds for airport purposes.
Chapter 43-6A of the Georgia Code Annotated (Supplement) codifies the Jekyll Island State Park Authority Act (Georgia Laws 1950, p. 152; Georgia Laws 1963, p. 391). Under the provisions of 43602A (b), and 43-606A (e) and (f) of the Georgia Code Annotated, legal authority is provided for the Jekyll Island State Park Authority to construct and operate an airport, and to receive and expend state funds, and the proceeds of any grant from the United States of America or any agency or any instrumentality thereof, and to accept loans and grants, either or both, of money or materials or property of any kind from the United States of America or any agency or any instrumentality thereof, upon such terms and conditions as the United States of America or such agency or instrumentality thereof may impose.
It is, therefore, my official opinion that the Jekyll Island State Park Authority does have the legal authority to plan, survey, improve, administer, construct, erect, acquire, own, repair, remodel, maintain, equip, operate, and manage an airport, and to receive and expend state and federal funds for airport purposes.
February 2, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you attach a copy of a contract for the lease of five school buses by the Miller County Board of Education. The contract provides for an eleven month lease by said board of education as lessee from "the Citizens Bank and/or G. C. Jenks of Colquitt, Georgia" as lessor and contains a purchase option. While your letter and the lease agreement are both silent as to the nature of the bank's involvement, it is reasonable to presume that said bank's concern is in the nature of a security interest. You point out in your letter that an F.D.I.C. examiner has, without specificity, raised a question "as to the legality of such a contract" and you conclude by requesting an opinion of this office as to whether such lease agreements may legally be signed by a county board of education.
In view of the broadness of the question propounded, I have had the matter inquired into by two of my assistants, one from the view-

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point of the banking laws and the other from the viewpoint of the statutes relating to the authority of local boards of education. Based upon their examination of those statutes believed to be applicable, I have concluded that there are no banking or education statutes of this State which would be violated by lease agreements of the instant nature.
The authority of a county board of education to either lease or purchase buses for the transportation of pupils would seem to be clear and beyond reasonable dispute. In addition to the obvious implication of Georgia Code Ann. 32-424 which requires that the minimum bus drivers' salaries fixed by the State Board of Education shall have a differential for drivers of "publicly owned and privately owned buses," and of 32-425 which pertains to minimum standards for school buses "whether owned or hired by the county board of education," 32-427 broadly declares:
"Whenever the county board of education deems it for the best interest of the schools of the county it shall also have the right and power to contract with individuals and/or corporations for the transportation of pupils and school employees to and from school."
It may also be noted that under Georgia Code Ann. 32-928 contracts for the transportation of pupils are exempted from the general prohibition of contracts involving the expenditure of funds in excess of the appropriation for the fiscal year, four year transportation contracts being expressly authorized by this section.
It is basic, of course, that a bank has the power to take and receive security, by mortgage or otherwise, on both real and personal property, Georgia Code Ann. 13-1801 (7). Furthermore it may in general hold, purchase, incumber, dispose of, and convey such real and personal property as may be necessary for its uses and business. Georgia Code Ann. 13-1801 (6). In Reynolds v. Simpson and Ledbetter, 74 Ga. 454 (3) (1885), it was held that a Bank may properly take such actions as were necessary to keep an "independent" business concern productive where such was done to satisfy a debt the bank held against the business.
In view of this broad general power vested in banks to take various actions necessary or advisable to protect their debts, it would seem that a bank may properly consent to the lease of personal property in which it holds a security interest. Inasmuch as I am unaware of any other provision of law which would be violated by the lease agreement in question, I am therefore of the opinion that the same may be legally executed by a county board of education.

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February 3, 1965
OPINION TO THE INSURANCE COMMISSIONER
This is in reply to your letter requesting my official opinion upon the following two questions:
1. Under the present provisions of Code Section 56-1310, may a municipality collect premium taxes upon the premiums received by a life insurance company during the current calendar year rather than the preceding calendar year from policies upon the lives of persons residing within the municipal limits?
2. If an insurance company pays municipal taxes assessed upon the current rather than the preceding calendar year's business, may the Inurance Commissioner allow such payment to be deducted from the premium taxes otherwise payable to this State under Georgia Code Ann. 56-1503?
An Act approved February 20, 1964 (Georgia Laws 1964, p. 122), amended Chapter 56-13 of the Georgia Insurance Code of 1960 by adding Section 56-1310, which now reads as follows:
"(1) Except as otherwise provided in this Section, the State of Georgia hereby pre-empts the field of imposing taxes, except taxes on real property and tangible personal property taxed ad valorem, upon life insurance companies, their agents and other representatives, including but not limited to, excise, privilege, franchise, income, license, permit, registration and similar taxes and fees mBasured by premiums, income or volume of transactions, and no county or unincorporated area thereof, city, municipality, district, school district, or other political subdivision or agency of this State shall impose, levy, charge or require the same, except as herein provided in subsection (2) of this section. [Emphasis added]
"(2) Municipal corporations are authorized, in conformity with the requirements of their charters, to impose and collect the following license fees or taxes upon life insurance companies for the privilege of engaging in the business of insurance within said municipal corporation: ...
. "(b) A tax on each life insurance company doing business within the municipal corporate limits which shall be based solely upon such gross direct premiums, as defined in Section 56-1303, as are received during the P'receding calendar year from policies upon the lives of persons residing within the corporate limits of such municipal corporation; provided, however, that the rate of such tax may not exceed one (1%) per cent of such premiums...." [Emphasis added]
It is my opinion that the provisions of this Act clearly prohibit municipalities from collecting any premium taxes on life insurance companies except as the Act provides, that is, based upon the gross direct premiums received during the preceding calendar year. The answer, therefore, to your first question is no.

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With reference to your second question, I call your attention to subsection (3) of the new 56-1310, which provides:
"(3) Life insurance companies may, after January 1, 1966, deduct from premium taxes otherwise payable to this State under 56-1303, in addition to all credits and abatements allowed by law, the license fees and taxes imposed pursuant to this section and paid to any municipal corporation during the preceding calendar year; except during the calendar year 1966 the amount of such deduction shall be limited to fifty (50%) :per cent of such license fees and taxes." [Emphasis added]
It is my opinion that this provision limits the deduction that life insurance companies may make from premium taxes payable to the State under 56-1303 of the Code to only those imposed "pursuant to this section." Should a life insurance company voluntarily pay a premium tax assessed upon the current year's business, the Insurance Commissioner could not, in my opinion, allow it as a deduction from taxes payable under 56-1303. The answer, therefore, to your second question is "no."
February 3, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
I have reviewed the proposed changes in Regents' policies on 'Resignation or Removal of Faculty Members of Institutions' as recommended by the University System Advisory Council at its meeting on January 15, 1965. The same has our approval with the exception of the last paragraph which reads as follows:
"Any faculty member dismissed by the president, as provided in the first paragraph stated above, shall be paid any accrued salary to date of dismissal, plus one-ninth of his annual salary if an academic year appointee or one-twelfth if a twelve month appointee from date of dismissal. . . ."
In order that this proposed procedure not be offensive to the constitutional provision prohibiting gratuity, we think that the statement should read as follows:
"Any faculty member dismissed by the president, as provided in the first paragraph stated above, shall be paid any accrued salary to date of dismissal, plus one-ninth of his annual salary if an academic year appointee or one-twelfth if a twelve month appointee from date of dismissal as a part of the consideration for his employment."
February 3, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
I have reviewed the proposed admissions statement from the University System Advisory Council, under date of January 15, 1965.

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I see no legal reason why the Board of Regents should not favorably consider an adoption or approval of this proposed statement except with reference to the last sentence, which reads as follows:
"Within this frame of reference, each institution should be autonomous with respect to admissions philosophy."
I would suggest that this sentence read:
"Within the framework of the Board's rules and regulations, and within the frame of reference of this statement with respect to admissions, each institution should be autonomous with respect to admissions philosophy."
February 4, 1965
OPINION TO THE SECRETARY OF STATE
This is in reply to your letter requesting my opmwn upon two questions propounded to you with regard to the application for charter of an insurance company under 56-1504 of the Georgia Insurance Code (Georgia Code Ann. 56-1504).
The first question refers to 56-1504 (g) which requires that the charter shall state the names and addresses of the corporation's first directors and the officers for stated terms of office of not more than one year. The inquiry is that since this is a matter which the stockholders and the directors must determine, may the petition merely set forth the names and addresses of the proposed directors and officers?
It is my opinion that the petition must state the names and addresses of the directors and officers for stated terms of office in order to comply with the law. It would not suffice to name the proposed officers and directors. In chartering an insurance corporation, the naming of the corporation's first directors and officers is a matter to be determined by the incorporators. There would be no objection to limiting the terms to less than one year. The petition could state that "the terms of office shall be a period of one year (or a specified number of months less than twelve if desired) or until such earlier date as their successors are duly elected."
Your second inquiry raises the question of whether a charter amendment is necessary to increase the number of directors. Certainly it would require an amendment to change the existing number named in the Charter. However, the original petition for charter could provide that "the number of directors shall not be less than three nor more than (whatever maximum number is desired) to be named and selected in accordance with by-laws to be hereafter adopted and the names of the corporation's first directors shall be as follows, etc."

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February 5, 1965
OPINION TO THE STATE GAME AND FISH COMMISSION
We are in recept of your letter in which you asked whether there are any laws which would prohibit a member of the Hospital Authority at Albany from selling seven acres of land to the Authority where the seven acres are part of a one hundred acre tract in which the Authority is interested. The member has stated that he will accept whatever appraisal price is placed upon the land.
The laws, if any, which normally would apply to this situation are the so-called "Honesty in Government Acts" of 1956 and 1959, incorporated in Georgia Code Ann. 26-5003 through 26-5027 and 89-913 through 89-919.
We have reviewed the foregoing laws, and it is our opinion that they would not prohibit the proposed sale in the circumstances which you have described.
February 8, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
This will acknowledge your letter requesting an opinion as to whether or not a 1935 Resolution requiring an annual loyalty oath of school teachers and other employees (Georgia Laws 1935, p. 1305) was repealed by a 1949 Act (Georgia Laws 1949, p. 960) requiring that all public employees be given such an oath. You particularly wished to know if an 3,nnual oath for teachers is still required.
The 1949 Act did not specifically repeal the 1935 Resolution, although it did contain a general repealing clause. Therefore, the 1935 Resolution could only be abrogated by a repeal by implication. The Courts do not generally look upon repeal of a statute by implication with favor, and will attempt to enforce both a prior and a later statute covering the same subject if at all possible. Thornton v. McElroy, 193 Ga. 859, 961 (1942); Folds v. Auto Mut. Indem. Co., 55 Ga. App. 198, 199 (1937). If, however, the later law is irreconcilable with the older law, the prior statute is repealed. Bedingfield v. Parkerson, 212 Ga. 654, 659 (1956). Or, if the second statute covers the subject matter of the earlier one more comprehensively, and appears to have been intended as a substitute for it, the Courts may find a repeal by implication. Sprayberry v. Wyatt, 203 Ga. 27, 34 (1948); Adcock v. State, 60 Ga. App. 207 (1939).
The 1935 Resolution and the 1949 Act concerning loyalty oaths are not clearly repugnant to each other, and could be construed together so as to give effect to both. But, it is apparent that the 1949 Act was obviously intended to cover an entire subject, whereas the prior enactment only dealt with a portion of that subject. The 1935 Resolution required that public school teachers and other em-

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ployees take an annual oath to support the government of this State and of the United States. The form of the oath was not set out in the Resolution. The 1949 Statute applies to all employees of the State, and its counties and cities, and all local educational systems, as well as all elected officials. The oath to be taken, set out in the Act, contains a pledge of allegiance to the State and to the United States, and also deals specifically with Communism.
It is readily apparent that the later legislation impliedly repeals the prior, as the class to which it applies is greater, and the subject matter is dealt with more extensively. For this reason, legislative intent to repeal the prior law would appear to be clearly manifested.
In my opinion, the 1935 Resolution has been repealed by implication, and it is no longer necessary to annually renew the required loyalty oath.
February 8, 1965
OPINION TO THE GOVERNOR OF GEORGIA
I am in receipt of your letter in which you requested my opinion as to whether you may designate the Director of the Department of State Parks to act as liaison officer of the State for funds granted pursuant to the Land and Water Conservation Fund Act enacted by the Congress last year, or whether special legislation would be necessary in order to authorize such a designation.
It is my opinion that you presently have sufficient powers as Governor and as ex-officio Commissioner of Conservation to make such a designation without the need for additional legislation.
Section 43-113 of the Georgia Code Annotated authorizes the Commissioner of Conservation to "arrange for and accept such aid and cooperation from the several United States governmental bureaus and departments and other sources as may assist in carrying out the objects of this Division."
The objects of the Division include promotion of conservation and development of the natural resources of the State (Georgia Code Ann. 43-103), an aim in complete harmony with the purposes of the Land and Water Conservation Fund Act.
The Director of the Department of State Parks already has been authorized by statute to accept lands, monies and other things of value, including grants from the Federal Government (Georgia Code Ann. 43-124). His designation as liaison officer to administer this State's participation in the program set forth in the Land and Water Conservation Fund Act is altogether consistent with the duties already imposed upon him.
We have examined the provisions of the Land and Water Conservation Fund Act, and particularly section 5 (f) thereof, to which

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your attention has been directed by a letter from the Regional Director of the Department of the Interior, and it is my opinion that all necessary requirements will be met by your designation of the Director of State Parks as the State's liaison officer.
February 9, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
I have your letter enclosing a letter from Mr. V. V. Lavroff, Comptroller, Georgia State College, regarding problems that have arisen in connection with requirements of Georgia law as to pre-employment physical examinations.
Georgia Laws 1956, 808, embodies statutory requirements with respect to physical examinations as a pre-requisite for employment by the State. Section 1 of the 1956 law states:
"No person who is otherwise qualified shall be employed by the State or any department or agency thereof, in any capacity, unless he shall furnish to the department or agency head evidence of successfully passing a physical examination by a physician approved by the State Personnel Board, to the effect that the person is in good health and free from any disability that would impair the fulfillment of the duties of his employment. Such examination shall be at the expense of the applicant." (Emphasis added)
Section 6 of the 1956 law stated:
"The provisions of this Act shall not apply to department heads or temporary employees of the State, nor shall the provisions hereof apply to any present employee."
In 1962, the last aforementioned Section 6 of the 1956 law was repealed in its entirety and a new Section 6 was substituted (Georgia Laws 1962, p. 541), which reads as follows:
"The provision~ of this Act shall not apply to department heads or temporary employees of the State, or to students in the University System of Georgia in the employ of the State, nor shall the provisions hereof apply to any present employee. A temporary employee is defined as a person whose period of employment does not exceed the prescribed number of calendar days allowed for the completion and reporting of the physical examination and who is not reemployed more than once for a similar period in any twelve consecutive months."
It seems to us that the various employees of the State of Georgia may be classified in three different categories:
1. A full-time employee works a full work day regularly on a permanent employment basis.

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2. A part-time employee works only a part of a work day or work week or work month on a permanent employment basis.
3. A temporary employee is an employee who works on either a full-time or part-time basis but for some specified number of days (number not to exceed number of days allowed by Merit System to furnish result of physical examination), not on a permanent basis, and who is not re-employed more than once for a similar period in any twelve consecutive months.
Bearing in mind that the 1956 law requires that no person may be employed by the State in any capacity unless he shall have a preemployment physical examination, the only exception being a temporary employee who is employed for a period of not exceeding 45 days, and who is not reemployed more than once for a similar period within any twelve consecutive months, all other employees, in our opinion, must have a pre-employment physical examination as a prerequisite to employment by the State of Georgia.
In our opinion the only persons who would be exempted from preemployment physical examinations in accordance with the definition set out above, would be temporary employees.
If this works a hardship on Georgia State College in its recruitment of part-time instructors, we would suggest that consideration be given to amending the law so as to exempt part-time employees from the requirement of a pre-employment physical examination.
February 10, 1965
CIGARETTE SALES TO MINORS
This is in reply to your letter wherein you inquire as to the legality of cigarette sales to minors.
While Georgia Code Ann. 26-6801 formerly made it a misdemeanor for any person to furnish cigarettes to minors, this code section has been repealed in its entirety by Georgia Laws 1960, p. 202. I am unaware of any other statute which would be violated by such sales to minors and, therefore, conclude that the same is now legal.
February 12, 1965
OPINION TO THE GOVERNOR OF GEORGIA
This will acknowledge receipt of your letter in which you enclosed certain information relative to Solicitor Charles Burgamy of the Southwestern Judicial Circuit. Mr. Burgamy had previously been Solicitor for the years 1953 through 1960 inclusive, and has again become Solicitor beginning this year. He now would like to become

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a member of the Solicitors General Retirement Fund by making payment of the required contributions into the Fund for the years served as Solicitor retroactive to 1953.
I have examined the Solicitors General Retirement Law quite carefully, and while, prior to 1964, there was no prohibition against such a payment for past service, there was nothing which would have seemed to expressly authorize this. However, Georgia Laws 1964, p. 758, amended section 10 of the Solicitors General Emeritus and Solicitors General Retirement Fund Law. The Section, as amended, briefly provides that payments into the Fund are to be made not later than February 15 of the succeeding year, but if not made by such date "the sum due shall incur a penalty of 6% interest per annum computed on the principal amount from February 15 until actually paid." It is also provided that all payments are to be accompanied by an affidavit from the solicitor general as to the correctness of the amount of salary of fees received by him during the period covered by such payments.
It is my opinion the provisions of Section 10, as recently amended, now contemplate payment by a solicitor for past service, and this is not limited by any date as to when such payment might be made. I base this upon the provisions for penalty of 6% interest per annum. Therefore, it is my opinion Mr. Burgamy is authorized to make payment into the Fund of the required contributions for the years 1953 through 1960 pursuant to the amendment of 1964.
February 12, 1965
OPINION TO THE GOVERNOR OF GEORGIA
I have received your request that I advise you as to when the Honorable Henry Durrence, Judge, Atlantic Judicial Circuit, would become eligible for appintment as Judge of the Superior Court Emeritus. You included in your request certain information from the Secretary of State as to the service of Judge Durrence.
I have reviewed the information furnished by Mr. Fortson, and find that Judge Durrence served as Solicitor of the City Court of Claxton from January 1, 1929, through December 31, 1941, for a total of twelve years. He has served as Judge of the Superior Court since January 1, 1959, to date, for a total of six years, one month, and twelve days.
Section 2 of the Judges of the Superior Court Emeritus Law, as amended (Georgia Code Ann. 24-2602a), provides that:
"Any Judge of the Superior Court of the State of Georgia who shall be in at least his 19th year of service as Judge ..., any service as . . . Solicitor of a city court, . . . being allowable in computing such 19 years of service, provided at least four years in one term ... have been served as Judge of the Superior Court . . . , shall be eligible for appointment to Judge of the Superior Courts Emeritus:...."

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It can thus be seen that the service of Judge Durrence as Solicitor of the City Court of Claxton is includable in computing the required years of service. When combined, these give him, as of today, a total of eighteen years, one month and twelve days of service which may be counted toward his eligibility for appointment. As this means he has completed more than eighteen years, and is thus in his nineteenth year, he is in my opinion eligible for appointment as Judge of the Superior Court Emeritus.
February 16, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
I have for acknowledgment your letter requesting my opinion and ruling pertaining to the raise in salary referred to on page 4 of House Bill 936, effective January 1, 1961, as affecting the Deputy Director of the Department of Public Safety.
The above referred to House Bill 936 is set out in Georgia Laws 1960, beginning at page 132. Section 2 thereof provides, "The Headquarters Staff shall be composed of Director; Deputy Director;...."
Said section further provides as follows:
"Said salaries shall be automatically increased 5% annually for the first five years of service, 3% annually for the next five years of service, 2% annually for the next ten years of service, and 1% annually for each year of service thereafter. Such increases shall be computed on the base pay of each member at the rank which he holds on April 1, 1958. In the event such member's rank changes in the future, such increases shall be recomputed on the basis of such new rank. Credit for prior service shall be granted and such service shall be used in the formula for computing such increases. No credit for service shall be granted for any time during which a person was not actually employed by the Department of Public Safety and received compensation therefor in one of the positions for which such increases are authorized herein. Credit shall be granted for service, not to exceed five years, in the armed forces of the United States for any period of time served during the years 1940 through 1946 and 1950 through 1955, provided the member to whom such credit is granted left the Department for the purpose of going into the armed forces and returned to the Department within six months after his discharge therefrom. The increases provided for herein shall likewise be received by the members of the Headquarters Staff, except the Director The increases provided for herein shall likewise be received by members of the Georgia Bureau of Investigation, whose compensation is based upon the same base pay schedule as that of the members of the Uniform Division of the Department of Public Safety as set forth in this Act, as amended. The Director and Deputy Director shall likewise continue to receive the increase of $365.00 per annum provided in the Act approved

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March 9, 1956 (Ga. L. 1956, p. 687), even if such Act is repealed. 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 percentage increases provided hereinbefore relative to salaries...." (Emphasis ours)
It is my opinion that the Deputy Directors who have served in the Department of Public Safety since January 1, 1961 are entitled to the raises from said Department as provided for above. In my opinion, since the exact method of computation is not entirely clear, I suggest that you clear your method of computation with the State Budget Director and the State Auditor.
February 17, 1965
GEORGIA HEALTH CODE
This will acknowledge receipt of your recent letter in which you ask my unofficial opinion as to what section of the Georgia Health Code, passed by the 1964 General Assembly of Georgia, may be used to restore a person to normal sanity and capacity who was committed to the Milledgeville State Hospital under the old "Lunacy Commission Law," now repealed.
As you know, the Georgia Health Code (Georgia Laws 1964, p, 499), codified unofficially as Title 88 of the Georgia Code Annotated, completely rewrote the laws dealing with hospitalization of the mentally ill, as well as considerably revising the procedure for the appointment of guardians for insane or deaf and dumb persons and persons non compos mentis under the provisions of Chapter 49-6 of the Georgia Code Annotated.
I am pleased to call your attention to several sections of the New Health Code which I feel will specifically answer your question, to wit:
"49-606. Validity of prior guardianships and hospitalization orders.-No guardianship or hospitalization in a psychiatric hospital as defined in subsection 88-501(c), lawful before the date of enactment of this Chapter, shall be deemed unlawful because of the enactment of this Chapter, and any such guardianship or hospitalization order shall continue subject to the provisions for discharge from hospitalization pursuant to Chapter 88-5 and subject to provisions for termination of guardianship as provided in section 49-605. It is the intent of this section that from the enactment of Title 88 all orders respecting the hospitalization or guardianship of the mentally ill shall be governed by the provisions of Chapter 88-5, or this Chapter respectively, but that no new proceedings need be instituted for the continuation of guardianship or hospitalization pursuant to laws existing prior to the enactment of Title 88."

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It appears clear under this above cited Code Section that any prior hospitalization order lawful before enactment of the New Health Code would remain valid and that the same shall continue subject to the provisions for discharge from hospitalization pursuant to 88-513 of the Georgia Code Annotated.
Section 88-511 of the Georgia Code Ann. provides:
"88-511. Discharge.-The superintendent of a hospital shall as frequently as practicable, but not less often than every six months, examine or cause to be examined every patient and, whenever he determines that the conditions justifying the hospitalization no longer exist, discharge the patient and immediately make a report thereof to the department and to the court of ordinary which ordered the patient hospitalized."
Section 88-513 (a) of the Georgia Code Ann. provides:
"88-513. Current examination of involuntary patient; procedure to obtain discharge.-(a) After the lapse of three months following the date on which a patient enters a psychiatric hospital as required by court order and not more frequently than every six months thereafter, the patient or his legal guardian, attorney, spouse, parent, or adult next of kin may request the superintendent in writing to cause a current examination by one or more physicians to be made as to the patient's mental condition and the results of such examination reported to such superintendent. If the request is timely, the superintendent shall cause such current examination and report to be made. The patient or his legal guardian, attorney, parent, spouse, or adult next of kin shall have the right to have present and taking part in such examination any duly qualified physician or physicians provided and paid by such patient, but such physicians shall furnish the superintendent a written report of their findings and conclusions. If the superintendent finds upon examining such reports that the patient is no longer mentally ill, he shall discharge the patient and notify immediately the court of ordinary which ordered his involuntary hospitalization. The court will thereupon enter its order discharging such patient from provisions of this Title. If the superintendent finds that the patient continues to be mentally ill, he shall not discharge the patient upon such request. Nothing continued herein shall be construed to impair or infringe upon the right of a patient, his legal guardian or his attorney from having an examination of such patient at reasonable times, at no expense to the State, by one or more physicians or psychologists authorized by law to practice their profession in this State. Such examination may be conducted to the exclusion of all personnel of the institution in which the patient is confined."
I readily see your problem as the facts of your particular case clearly show that your client is not currently hospitalized in the Milledgeville State Hospital and that in fact was discharged from such hospital on February 1, 1956. As a result thereof no current examination could be conducted by officials of the Milledgeville State

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Hospital. To further add to the confusion, the old sections, 49-610.0 through 49-610.9, which contained the procedure for restoration to sanity under the old "Lunacy Commission Law" have been specifically repealed by the 1964 Health Code (Georgia Laws 1964, p. 499, 654). However, in construing the above cited sections of the Code. i.e., 49-606, 88-511 particularly, and 88-513 (a), it is my unofficial opinion that the superintendent of the Milledgeville State Hospital could make a report to the Ordinary of the County which ordered the patient hospitalized to the effect that your client was discharged from such hospital on February 1, 1956 as "restored," and that the Ordinary of said court could thereupon enter his order of restoration to sanity.
It is further my unofficial opinion that the above outlined procedure would meet the requirements of the 1964 Health Code in the restoration of your client to sanity.
February 18, 1965
OPINION TO THE STATE HIGHWAY DEPARTMENT
This will reply to your letter in which you request the opmwn of this office as to the obligation and authority of the State Highway Department to participate in the cost of relocating a portion of the railroad tracks of the Atlantic Coast Line Railroad from their present location on Newcastle Street in Brunswick, Georgia.
It is noted from the enclosures with your letter that the Atlantic Coast Line Railroad and its predecessor, the Brunswick and Florida Railroad Company, have owned, used and maintained the tracks under discussion continuously since prior to the year 1856, and that both the Commissioners of Roads and Revenues of Glynn County and City Commission of the City of Brunswick, Georgia, by appropriate resolutions have recognized and acknowledged such ownership and maintenance even though the railroad is unable to produce any deed or other conveyance of the right of way, which extends 25 feet to each side of the center of the tracks.
It is also noted that the City Attorney of Brunswick, Honorable Bernard N. Nightingale, has issued a well-reasoned and detailed opinion holding that the railroad has prior and superior claim to the claim of the City of Brunswick to a portion of the Newcastle street right-of-way 17 feet in width extending from the northerly line of "Y" Street northerly to the Roswell-King Town Commons Line between "S" and "T" Streets and that the railroad had been deeded a portion of Newcastle Street right-of-way lying 25 feet on each side of the center of the tracks as they are now located from RoswellKing Town Commons Line northerly to the city limits of the City of Brunswick. It is also noted that this opinion by Mr. Nightingale is concurred in by Honorable Edward B. Liles, Glynn County Attorney.
I also concur in the opinion of Mr. Nightingale and point out to you that while prescriptive title, that is, adverse possession of lands

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for 20 years, cannot be acquired against the State or its political subdivisions, a parol license can ripen into an easement running with the land by long and continued use, known and undisturbed. I call your attention to 85-1404, Georgia Code Annotated, which provides:
"85-1404. Parol License; Revocation; Easement Running with I.and.-A parol license is primarily revocable at any time, if its revocation does no harm to the person to whom it has been granted; but it is not revocable when the licensee has executed it and in so doing has incurred expense. In such case it becomes an easement running with the land."
There is no dispute that the City of Brunswick has acquiesced in the use of the right-of-way along Newcastle Street by the railroad. Nor is it disputed that the railroad has incurred expense in the laying and maintaining of the track and would be damaged by a revocation of the right to use the right-of-way.
In my opinion the Atlantic Coast Line Railroad as succesor in interest to the Brunswick and Florida Railroad has a prior and superior claim to the right-of-way under discussion to any claim that could be asserted by the City of Brunswick or other parties, and that under the principal laid down in State Highway Department v. Norton, 104 Ga. App. 106 (1961), would be entitled to compensation for damages suffered by reason of re-locating its tracks.
I would also point out that the Atlantic Coast Line is engaged in interstate commerce, the regulation of which, under the Federal Constitution is exclusively reserved to the Congress of the United States, and the State of Georgia cannot impose undue burdens upon such commerce. While the State, under its soverign power of eminent domain, can condemn railroad property used in interstate commerce and thereby, to some extent, impose a burden on interstate commerce, it cannot by arbitrary, capricious and unnecessary execise of such power take and destroy property which a railroad is using for the purpose of carrying on an interstate commerce business. (Southern Ry. Co. v. State Highway Department, 219 Ga. 435 (1963). The condemnation of railroad right-of-way used in interstate commerce carries with it the obligation of providing a suitable and practical alternate right-of-way to replace that which is taken.
Nothing contained in this opinion is to be construed as a limitation upon the sovereign power of eminent domain as exercised by the State Highway Department, except that:
(a) In the project under discussion the Atlantic Coast Line owns such an interest in the right-of-way along Newcastle Street, under the facts submitted and the laws of this State, as would entitle said railroad company to just and adequate compensation when taken for highway purposes; and
(b) Under the provisions of the Constitution and laws of Georgia and of the United States, and especially under the interstate commerce provisions of the Federal Constitution, the subject property could not be taken without just and adequate compensation including adequate provision for relocation of the railroad tracks here involved.

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I am therefore of the opinion that the State Highway Department is liable for the expense of relocating the tracks of the Atlantic Coast Line Railroad in this project, including the procurement of the right-of-way for the new route.
This opinion is intended to apply only to the particiular facts and circumstances set forth herein and no other situation that may now exist or may exist in the future.
February 24, 1965
OPINION TO THE GAME AND FISH COMMISSION
This will acknowledge your request for an opinion as to whether uniforms may be purchased for all personnel of the Game and Fish Commission, or whether buying of uniforms must be restricted to those required for enforcement personnel only.
Georgia Laws 1955, p. 483, Section 13, as amended, particularly by Georgia Laws 1956, p. 349, and Georgia Laws 1960, p. 228 (Georgia Code Ann. 45-113), provides in paragraph (a):
"(a) The Commission shall appoint and fix the salaries of such assistants and employees, including a uniformed division to be known as Wildlife Rangers...." (Emphasis added)
and further, in paragraph (b), provides:
"(b) The State Game and Fish Commission, is hereby authorized to purchase, as other State purchases are made, all necessary uniforms to equip the Wildlife Rangers as a uniformed division, and to pay for said uniforms from any funds made available to the State Game and Fish Commission for operation of the Department." (Emphasis added)
Based on these two paragraphs of Georgia Code Annotated, Section 45-113, I am of the opinion the State Game and Fish Commission can purchase uniforms only for its Wildlife Rangers, which, by terms of this Section, are made the uniformed division of the State Game and Fish Commission. Purchase for any other employees would not be authorized under the statute, and. I know of no other law which would authorize this action.
February 25, 1965
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you request advice concerning the course of action to be taken by the Department of Family and Children Services with respect to a check issued to the "Gibson

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Rest Home." It appears that the former administrator of the rest home, who no longer was authorized to act in its behalf in such matters, somehow acquired possession of the check and after endorsing the name of the rest home thereon, deposited the same to his own personal account.
It appears that the prior administrator of the "Gibson Rest Home," Mr. C. F. Landrum, was replaced by Mr. W. E. Thompson at some date after July 15, 1964, and before December 4, 1964. Although the exact date of the change is uncertain, records of the Department of Family and Children Services do indicate that all county departments were advised on December 4, 1964 by DMC Memorandum No. 112 to change the name of the administrator toW. E. Thompson.1
It is, therefore, quite clear that the Department's check [number 8699], which was made payable to the order of "Gibson Rest Home" and dated December 7, 1964, was issued after Mr. Thompson had replaced Mr. Landrum as administrator of the rest home.
Notwithstanding this change of administrators, however, it appears that Mr. Landrum somehow acquired physical possession of the check after its arrival at the Gibson Rest Home. On December 8, 1964, he endorsed the check by writing "Gibson Rest Home" thereon and deposited the same to his own account in the Citizens Bank of Warrenton, Georgia.2 In accordance with normal banking procedure the Citizens Bank transferred the check to its Atlanta correspondent, the First National Bank of Atlanta, which in turn forwarded the item to the payee bank, Fulton National, also of Atlanta. The Fulton National Bank thereupon debited the Department's Medical Assistance Account in this bank in an amount equal to the face value of the check [$2,103.25].
On December 18, 1964, an affidavit was received by the Department from Mr. Thompson. It was alleged therein that the endorsement "Gibson Rest Home" on the check was neither written nor authorized by Mr. Thompson, that the signature was a forgery, and that the Gibson Rest Home had received no part of the proceeds from such check.
To counter this affidavit the Executive Vice President of the Citizens Bank of Warrenton submitted an affidavit on January 26, 1965. This affidavit of the Bank alleged in essence that Mr. Landrum was generally known in the community as the administrator of the Gibson Rest Home, that the bank had no knowledge of his removal, and that the error, if any, was caused by the negligence of the rightful owners in their failure. to have the name "Gibson Rest Home''
1. Other correspondence of the Department would seem to indicate that Mr. Thompson had become administrator sometime before the period of November 28 to December 4, 1964.
2. It is noteworthy that prior checks payable to the "Gibson Rest Home", which endorsed in the same manner, had been cleared through the Thompson Banking Company in Wrens, Georgia and not through the Citizens Bank of Warrenton.

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registered as a trade name in the office of the Clerk of the Superior Court and in their permitting Mr. Landrum to be generally recognized in the community as the administrator of the rest home.
You ask for an opinion as to whether the Department should recognize the affidavit signed by Mr. Thompson and demand refund from your depository, the Fulton National Bank [which would result in the item being charged back ultimately to the Citizens Bank of Warrenton], or whether you should consider the affidavit of the Citizens Bank, Warrenton, Georgia, as refuting Mr. Thompson's affidavit and refuse to force collection of the item through your Atlanta depository.
Although the alternative courses of action you propose, especially in light of the factual uncertainties, do not present a situation where one course of action is clearly "legal" and the other clearly "illegal," it is my opinion that the more proper course of action would be to demand refund from your depository on the grounds set forth in the affidavit of Mr. Thompson.
The records of the Department of Family and Children Services indicate, and all concerned parties concede, that Mr. Thompson had replaced Mr. Landrum as administrator of the Gibson Rest Home before the check in question was issued by the Department. Moreover, the affidavit filed on behalf of the Citizens Bank neither refutes nor even disputes the sworn statement of Mr. Thompson that the signature "Gibson Rest Home" on the check was neither written nor authorized by him, that the signature was a forgery, and that the Gibson Rest Home has received none of the proceeds from the check. To the contrary, the affidavit of the Bank actually tends to support Mr. Thompson's allegations by admitting (1) that the check was cashed by Mr. Landrum and (2) that Mr. Landrum was not the administrator of the Gibson Rest Home at the time he cashed the check.3
In view of the foregoing facts, which appear to be undisputed, it would seem that the Citizens Bank, which cashed the check for Mr. Landrum upon his unauthorized endorsement of the payee's name, would be liable to both the First National Bank and the Fulton National Bank upon its express guarantee of prior endorsements as well as under Section 4-207 of the Uniform Commercial Code [Georgia Code Ann. 109-A-4-207]. This section, in addition to providing in subsection 1 that each customer or collecting bank obtaining payment or acceptance of an item warrants to the payor bank that it has good title to the item or is authorized to obtain payment or acceptance on behalf of one who has good title, declares in subsection 2:
3. As previously noted in the portion of this letter memorandum out.lining the facts involved, the information of the Department is that the Citizens Bank was not the bank customarily used by the Gibson Rest Home to clear its checks, and that Mr. Landrum deposited that check to his own personal account rather than any account of the Gibson Rest Home. There is no indication that the Citizens Bank made any inquiry into the matter because of these unusual circumstances.

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"Each customer and collecting bank who transfers an item and receives a settlement or other consideration for it warrants to his transferee and to any subsequent collecting bank who takes the item in good faith that
(a) ...
(b) all signatures are genuine or authorized; ...."
It is my opinion that the affidavit filed on behalf of the Citizens Bank sets forth no allegations of fact which could in any way vitiate its liability under the aforesaid guarantee and warranties to the two banks which subsequently handled the check [to the ultimate benefit of the Department of Family and Children Services whose account in the Fulton National would be credited with the face amount of the check]. Viewed most favorably to the Citizens Bank of Warrenton, its affidavit merely raises an issue of whether or not it may recover such loss as it may incur in the transaction from the Gibson Rest Home. The Citizens Bank appears to contend that the rest home, through the negligence of its officers and employees, substantially contributed to the unauthorized endorsement and cashing of the check by its previous administrator. Such contention travels on the general equitable principle that:
"When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss." Georgia Code Ann. 27-113.
and upon such principle's corallary in the Uniform Commercial Code which declares:
"Any person who by his negligence substantially contributes . . . to the making of an authorized signature is precluded from asserting the . . . lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business." U.C.C. 3-406 [Georgia Code Ann. 109-3-406].
Whether or not the Citizens Bank would prevail under this theory [in an action to recover such loss as it might incur from the Gibson Rest Home] is a question which I would not attempt to answer. Suffice it to say that this issue would require inquiry into the precise factual situation surrounding Mr. Landrum's continued connection with the rest home (if any) and the exact circumstances whereunder he acquired physical possession of the check. In any event it would seem to me that inasmuch as it is the Gibson Rest Home and Citizens Bank of Warrenton who would be the parties directly and primarily interested in the determination of such issue, the matter ought to be resolved between these two parties without the involvement of the Department of Family and Children Services. For this reason I believe the best course of action for the Department would be to demand refund from your depository (resulting in the items being charged back to the Citizens Bank), and leave the question of possible liability of the rest home to the accepting bank to be resolved by these parties who are the principal protagonists in the matter.

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February 25, 1965
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT
In response to your request, we hereby advise you to make a charge against the person you previously inquired about for failure to surrender her license, tag, and registration, although a case was made against her previously in this matter. Georgia Code Ann. 92A-614 states that:
"Any person whose license or registration shall have been suspended as herein provided shall immediately return his license and registration to the Director. If any person shall fail to return to the Director the license or registration as provided herein, the Director shall forthwith direct any peace officer to secure possession thereof and to return the same to the Director."
And, Georgia Code Ann. 92A-9918 (d) states that:
"(d) Any person wilfully failing to return license or registration as required in section 92A-614 shall be fined not more than $500 or imprisoned not to exceed 30 days, or both."
The offense under these laws is failure to surrender the license or registration, and is a continuing offense. Therefore, charges may be made against her until she surrenders the necessary documents. No double jeopardy is involved in a case of this nature.
February 26, 1965
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you ask certain questions relating to the respective jurisdiction of the Superior and Juvenile Courts of this State where a child under seventeen years of age violates a criminal statute. The answers to each of your four questions are as follows :
1. At what minimum age under Georgia law is a child deemed culpable for a felony and therefore subject to be indicted and tried under the criminal codes?
Under the laws of Georgia an infant less than ten years of age is deemed incapable of committing a crime as a matter of law. Georgia Code Ann. 26-302. Between the ages of ten and fourteen there is a legal presumption of incapacity but this presumption is rebuttable and upon a showing by the State that the child can distinguish between right and wrong the child may be held accountable for his actions in a criminal proceeding. Clemmons v. The State, 66 Ga. App. 16, 19 (1941). Upon his attaining fourteen years of age a child in Georgia is deemed to be capable of committing a crime. Georgia Code Ann. 26-301.
2. In the case of a child under seventeen years of age who has committed a felony, is it necessary for the solicitor

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general and/or the superior court judge in the circuit which has jurisdiction to waive jurisdiction in order for the child to be handled under the Juvenile Court Act?
Georgia Code Ann. 24-2409 provides that where it is ascertained during the pendency of a criminal or quasi-criminal charge against a minor in any court that such minor was under the age of seventeen years at the time the alleged offense was committeed (or under sixteen in the case of an alleged violation of traffic laws or ordinances):
"it shall be the duty of such court forthwith to transfer the case, together with all the papers, documents and testimony connected therewith, to the juvenile court." (Emphasis added)
Standing alone, it would seem that the clear mandatory language in the foregoing code section would evidence an intendment on the part of the General Assembly that where a child accused of any crime is less than seventeen years of age (or less than sixteen in the case of the violation of a traffic law or ordinance) jurisdiction shall be vested solely and exclusively in the Juvenile Court.
But it requires no citation of authorities to point out that a statue which is inconsistent with or in conflict with a constitutional provision must, at least to the extent of such inconsistency or conflict, give way to the higher law. Article VI, Section IV, Paragraph I of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 2-3901] provides:
"The Superior Court shall have exclusive jurisdiction .. in criminal cases where the offender is subjected to loss of life, or confinement in the penitentiary. . . ." 1
While the Juvenile Court Act of 1951 has been upheld against an attack urging that any attempted exercise of jurisdiction by a juvenile court arising out of a minor's committing an act which constituted a felony would violate this constitutional provision [plaintiff arguing that the Superior Court's jurisdiction was "exclusive" in criminal cases and the Supreme Court ruling contra because of the fact that juvenile court proceedings are civil and not cirminaJ2, it was held in Jackson v. Balkcom, 210 Ga. 413 (1954) that should any of the provisions of the Act be construed as being intended to curtail the jurisdiction of the Superior Court in cases of felony, such provisions would be unconstitutional.3
1. I.e., a "felony," see Georgia Code Ann. 26-101 and 102-103. 2. Hampton v. Stevenson, 210 Ga. 87 (1953). 3. While relatively insignificant in view of this constitutionallimitait may also be noted that the seemingly clear indication of legislative intent in 24-2409 to vest jurisdiction over such matters exclusively in the juvenile courts is itself weakened by the fact that the very next provision ( 24-2410) of the Act states that nothing in the Chapter shall prevent the indictment, trial and conviction "of any person fifteen years of age or older in any superior court having trial jurisdiction of the offense," in accordance with the constitutional provision. In addition, there is no express repeal of Georgia Code Ann. 26-301 which provides that a child who has reached fourteen years of age is deemed capable of committing a crime.

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Thus, the situation in Georgia today is one whereby a child under seventeen years of age who has committed an act which is a felony is subject to the criminal jurisdiction of the superior court and the civil jurisdiction of the juvenile court at the same time. In such situations as this, where two courts have concurrent jurisdiction over a matter, it is well settled that whichever court first takes cognizance of the same acquires the exclusive right to dispose of the matter without interference by the other court. Hamrick v. Hamrick, 206 Ga. 564, 566 (1950) ; Breeden v. Breeden, 202 Ga. 740 (6) (1947). See also 21 C.J.S. Courts 492. For this reason it is not necessary to the exercise of jurisdiction by the juvenile court that the concurrent jurisdiction of the superior court be waived by the solicitor general and/or the superior court judge where the superior court has not yet exercised its jurisdiction.
3. If a child is handled as a juvenile for a felony, can he later be indicted and tried in criminal court for the same offense?
Although Article I, Section I, Paragraph VIII of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-108) declares:
"No person shall be put in jeopardy of life, or liberty more than once for the same offense ... ,"
the question of whether a child whose felonious action had previously given rise to a juvenile court proceeding could subsequently be in-
dicted and tried in the superior court would have to be said to be an
open question in this State with the probability being that the courts would, should the question be presented, hold that the child was subject to subsequent indictment, trial and conviction in the superior court.
In general double jeopardy applies exclusively to criminal proceedings and does not mean that a person who has done an act having both criminal and civil consequences can not be called upon to answer for the act in both aspects. See 15 Am. Jur. Criminal Law 363 (1938); 22 C.J.S. Criminal Law 240 (1961). The Supreme Court of Georgia has already held that proceedings under the Juvenile Court in this State are civil rather than criminal proceedings. Hampton v. Stevenson, 210 Ga. 87 (1953).
It is true that in other jurisdictions there appears to be a conflict where the civil action involves the deprivation of a person's liberty (as if often the case in juvenile proceedings) with some courts having held that a proceeding against a minor in juvenile court does preclude his subsequent prosecution for an offense growing out of "the same transaction." See 22 C.J.S. Criminal Law 240 (1961). It would seem, however, that these states are those which conceive of double jeopardy in general as prohibiting any subsequent trial for an offense arising out of the same transaction. The majority of the courts considering the problem, on the other hand, apparently relying on a test of "identity of offense" rather than "identity of transaction," have held that double jeopardy is not involved in a subsequent prosecution of a child based on the same acts for which the child had

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previously been judged delinquent. See 22 C.J.S. Criminal Law 240 (1961). My feeling that the courts of Georgia would follow the majority rule in cases of subsequent prosecution of children previously subjected to proceedings in the juvenile court is based upon the fact that the courts in this State, as in the majority of other jurisdictions, have adhered to the concept of double jeopardy requiring identity of the offenses and not merely identity of the transaction. See, e.g., Price v. The State, 76 Ga. App. 108 (1947); Clay v. The State, 4 Ga. App. 142 (3) (1908).
4. Can a child under seventeen who has committed an offense less than a felony be subjected to any proceedings other than those of the juvenile court?
While the constitutional provision (Georgia Code Ann. 2-3901) which was discussed in answer to your second question clearly results in concurrent jurisdiction in the superior and juvenile courts where the action of an individual less than seventeen years of age amounts to a felony, see Jackson v. Balkcom, 210 Ga. 413 (1954) and Hampton v. Stevenson. 210 Ga. 87 (1953), the question of whether or not the seeming legislative intent of Georgia Code Ann. 24-2409 to vest jurisdiction over crimes committed by persons less than seventeen years of age (or less than sixteen where the violation is of a traffic law or ordinance) exclusively in the juvenile court may be effectuated in the case of a "misdemeanor" remains unanswered by the courts. It is my opinion, however, that if presented for judicial decision the question would almost certainly be answered by a judicial determination that the civil proceedings authorized by the Juvenile Court Act in no way limits the criminal jurisdiction vested in the superior courts or other courts of this State. In the first place it is most unlikely that the courts would hold that the General Assembly has the power to deprive the superior courts of jurisdiction over misdemeanors. The Supreme Court of Georgia, in Porter v. The State, 53 Ga. 236 (1874) held with respect to the Constitution of 1868 that the General Assembly did not have such power, and, inasmuch as that decision turned on provisions which have been carried forth in subsequent constitutions, including that of 1945 [e.g. the clause vesting the "judicial powers" of this State in certain named courts with a necessary conclusion being held by the court to be that the power to try misdemeanors is vested (albeit not "exclusively" vested) in the superior courts; see Article VI, Section I, Par. I (Georgia Code Ann. 2-3601) of the 1945 Constitution], it would seem to me to be highly probable that this decision would be followed with respect to the 1945 Constitution. In addition, the legislature has in no way modified the statutes relating to the criminal capacity of minors (see the answer to question one in this memorandum). For these reasons, I am of the opinion that the concurrent jurisdiction situation which pertains to a juvenile who has committed a felony is also applicable to the juvenile who has committed a misdemeanor. Accord. Ops. Att'y Gen. 37-38 (1952-53).

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February 26, 1965
OPINION TO THE DEPARTMENT OF FORESTRY
You have requested my official opinion as to whether or not a cooperative agreement between the Georgia Forestry Commission and the Georgia Ports Authority would be sufficient to authorize the sale of timber located on Colonel's Island, Georgia, which is property under the direct control of the Georgia Ports Authority.
I would like to call your attention to the following provisions of Georgia law which I feel will answer your specific question, to wit, 98-205 of the Georgia Code Ann., which provides, inter alia:
"98-205. Powers of Authority.-The Authority shall have powers: ...
"(3) to acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper, or by condemnation in accordance with and subject to the provision of any and all existing laws applicable to the condemnation of property for public use, real property or rights of easements therein or franchises necessary or convenient for its corporate purposes, and to use the same so long as its corporate existence shall continue and to lease or make contracts with respect to the use of or dispose of the same in any manner it deems to the best advantage of the Authority, ...." (Emphasis added)
Section 43-218 of the Georgia Code Ann. deals with your authority to sell, exchange or lease lands under your control. That Code Section reads as follows:
"43-218. Rules and regulations as to lands under control of Commission; sale, exchange, or lease of such lands.-The Director, with the approval of the Commission, is authorized to establish and from time to time alter rules and regulations governing the use, occupancy, and protection of the land and property under its control, and to preserve the peace therein. The Director, with the approval of the Commission, shall have full power and authority to exchange, sell, or lease lands under its jurisdiction when in their judgment it is advantageous to the State to do so in the highest orderly development and management of State forests: ...." (Emphasis added)
It is therefore my opinion that you may sell the timber on Colonel's Island as outlined in the cooperative agreement between the Georgia Ports Authority and your Commission without the necessity of obtaining an executive order from the Governor.

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February 26, 1965
ORDINARY'S FEES
We received your letter in which you asked several questions relative to the issuance of marriage licenses and the fees which an ordinary would be entitled to charge.
I have examined the Code closely, and find that 24-1716 of the Georgia Code Annotated provides a fee of $2.00 for every application for a marriage license, and a fee of $2.00 for every marriage license issued and recorded. This gives a subtotal of $4.00. Then, 88-1206 (a) (codified unofficially from Georgia Laws 1952, p. 103) provides the ordinary shall be entitled to a filing fee of $1.00 to be paid by the applicant upon application for the marriage license for the purpose of providing registration with the State Board of Health of marriages. This gives a total of $5.00 which an ordinary should collect for marriage licenses.
As for the affidavit of pregnancy, 24-1716 provides a fee of $.50 for each affidavit where no case is pending before the ordinary. In addition, that Section provides a fee of $1.00 for seal and certificate, which has been interpreted by the ordinaries as allowing $1.00 each for the seal and the certificate, or a total of $2.00. This would certainly seem applicable when issuing a certificate of marriage. If not, and there appearing nothing which would directly spell out a fee for a certificate of marriage or be applicable thereto, then procedure under Sction 24-1110 would appear to be in order. I do not think you would encounter any difficulty in securing this amount under that procedure.
February 26, 1965
SALARY INCREASES
You ask the following questions:
1. What authority would have to approve an increase in salary for an employee of the Department of Public Safety pursuant to the authorization found in House Bill 936?
2. If an increase is proposed by the Director of Public Safety immediately, would an ex-employee as well as present employees be entitled to a retroactive pay increase from the time of legislative authorization of the increase?
In answer to question No. 1, Georgia Laws 1960, page 135, states that "Said salaries shall be automatically increased ..." so that the increases are effected by the authority of the legislature, and the only approval that is required is implied by the very nature of the law itself, to be given by the Budget Bureau.

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In answer to No. 2, if an increase is proposed by the Director, immediate increases for all Deputy Directors from the effective date of the law to the date of separation from the Department of Public Safety would be authorized to receive the increases as provided by law. There is really no retroactive pay increase involved in this matter as the increases as authorized by law were due and payable from the effective date of the law as therein provided.
March 1, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
I have for acknowledgment your letter in which you advise that the National Defense Education Act of 1958, Title III, Sections 301-305, provides federal financial assistance for strengthening instruction in mathmatics, science, modern foreign language, and other areas. You also advise that Title I, Section 103, Item (h), of the federal law states, "For the purposes of sections 201 through 304, the term 'secondary school' may include a public junior college, as determined under State law."
In your letter you request that I give you an official ruling as to whether or not our public junior colleges are extensions of our public secondary schools and thereby eligible to participate in this federal act.
The statutory definition of "a junior college" is set out in Georgia Laws 1958, p. 47, codified in Georgia Code Ann. 32-157 (supplement) as follows:
" 'Junior College' shall mean a community educational institution constructed and operated by a local operating authority which shall offer a course of study extending beyond the high school level providing either preparation for further college or terminal education or both, provided that an institution which otherwise would fall under this definition shall not be excluded solely because it offers courses below a college level if such courses are strictly remedial in nature."
However, it must be noted that this particular definition is within the framework of the Junior College Act of 1958, which was designed for the operation of a junior college to be constructed and operated by a local operating authority. It is my opinion that for the purpose of defining a public junior college otherwise operated by the Regents of the University System of Georgia, we could take the definition as given above and exclude the portions relating to construction and operation by a local authority. A junior college thus defined would read as follows:
"A public educational institution constructed and operated by the Regents of the University System of Georgia, or by any local operating authority as provided by the Constitution of the State of Georgia, which shall offer a course of study ex-

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tending beyond the high school level providing either preparation for further college or terminal education or both, provided that an institution which otherwise would fall under this definition shall not be excluded solely because it offers courses below a college level if such courses are strictly of a remedial nature."
It is my opinion that all of the two-year institutions operated by the Regents of the University System of Georgia shall fall within the definition set out in Title I, Section 103, Item (h), of the federal law referred to above, which states, "For the purposes of sections 201 through 304, the term 'secondary school' may include a public junior college, as determined under State law," and are, thereby, eligible, in my opinion, to participate in this federal act.
March 3, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether the State Board of Education, in order to upgrade the qualifications of certain of its staff members, may permit such staff members to continue to draw their salaries while they are engaged in advanced studies and temporarily removed from their assignments in the State Department of Education.
It is my opinion that where the course of advanced study being pursued by the staff member is directly related to his assignment in the Department of Education or to assignments he is expected to undertake the completion of his studies, the State Board of Education may lawfully continue to pay such member's salary while he is temporarily away from his assigned duties in the Department.
Article VII, Section II, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Code Ann. 2-5501) provides that purposes for which the powers of taxation of the State may be exercised by the General Assembly shall include:
"(1) the support of the State Government and the public institutions.
(2) ... educational purposes...."
and in Worth of Public Education for the City of Savannah and County of Chatham, 177 Ga. 166, 175 (1933) the Supreme Court of Georgia observed that the phrase "for educational purposes" in this constitutional provision should be given its broadest significance.1
1. It may further be noted Article VII, Section I, Par. II (7) of the State Constitution [Georgia Code Ann. 2-5402 (7)] authorizes the State Departments to disburse State funds to match Federal funds in order to provide qualified employees with graduate or post graduate educational scholarships.

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Under the school laws of this State the General superviSIOn of the State Department of Education and its personnel is vested in the State Board of Education which Board is also authorized to set aside such funds as it may deem necessary to maintain the Department, including the sums needed to pay the salaries of the Department's administrators and employees. Georgia Code Ann. 32-408. That t.his statutory power in the State Board [to employ personnel for the Department of Education and pay their salaries] does not exceed the constitutional limitations on the use of monies derived from State taxation would seem clear beyond dispute. In my opinion it could be rested both on the authorized purpose of supporting the State Government and the public institutions, and, as an expenditure for educational purposes.
It would further seem quite obvious that the power to pay salaries to employees of the Department necessarily includes the power to pay such staff members while they are learning to perform the particular tasks to which they are assigned. As in the case of industry, business and governmental departments generally, it would be the exceptional situation where an individual, especially on the administrative level, would be able to take over a new position in such manner as might enable his superior to immediately state that he was "earning his keep." It would also seem to be a common sense observation that in certain professional pursuits, such as education, the period of learning before an individual may be deemed to be fully productive is often somewhat extended. In view of the high level of qualifications required of many staff members of the State Department of Education it would seem to me to be well within the discretion of the State Board of Education to determine that in some situations the most expedient method of upgrading the qualifications of such personnel so that they might better perform their assigned duties or such duties as it is anticipated they will be assigned when qualified, would be to have them temporarily absent themselves from their customary duties in the Department in order to undertake formal advanced study. Where such studies are directly related to their assignments in the State Department of Education or to assignments which it is anticipated will be given to them upon completion of their studies I believe that it would be perfectly proper to continue to pay their salaries while they are engaged in such studies. The constitutional foundation for this expenditure of public funds would again seem to me to be (1) support of the State Government and the public institutions, and (2) educational purposes [both from the viewpoint of the direct and substantial benefit to the State from the upgrading of their qualifications].
It should be carefully noted, of course, that the foregoing would hold true only where the studies are directly related to the duties or anticipated duties of such staff members in the Department. It manifestly would not be applicable to studies in fields totally unrelated to
any activity of the State Department of Education. As a precautionary note I might point out that in authorizing such temporary absence
from the Department for advanced study with salary, it might be desirable to require such staff members to agree to continued employ-

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ment in the Department upon the conclusion of such study for a period commensurate with the salary received while engaged in such study.
March 3, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
You have requested that I render a ruling as to whether it is legally permissible for the Georgia Institute of Technology to furnish the General Electric Company with a property damage waiver in connection with certain nuclear equipment to be purchased from the General Electric Company.
Georgia Code Ann. 32-119 provides that:
"Title to all real, personal, and mixed property of whatever nature of each of the institutions named in section 32-103 is vested in the Board of Regents, to be held by said Board in trust for the benefit and use of the institutions entitled thereto, it being the purpose and intent of the General Assembly that the Board of Regents shall hold title to the property or assets of each institution, so that each institution shall receive the use and benefit of the property devoted to its use, and in no event shall the property or assets of one institution be subject to the liabilities or obligations of any other institution: Provided, however, that this restriction shall not prevent the Board of Regents from utilizing the facilities, educational or otherwise, of one school for the advancement or assistance of another."
Following the above cited statute, it is clear that any equipment purchased for use at the Georgia Institute of Technology is purchased for the Board of Regents, as owners, by the State Purchasing Department. And, title to the entire nuclear facility is vested in the Board of Regents. For that reason, it would not be permissible for a particular instituton within the University System to execute such a property damage waiver, as that document would affect the property of the Regents and not that of the Georgia Institute of Technology. Furthermore, the right to sue General Electric for property damage is also vested in the Board of Regents by virtue of its ownership of the property.
In my opinion, Georgia Institute of Technology, as a State Institution, has no authority to execute a property damage waiver in this or any future transactions of this nature.
March 3, 1965
EASEMENTS OVER STATE PROPERTY
This is in reply to your letter regarding the proposed grant of an easement to Floyd County on state property which is currently being

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used by the Georgia School for the Deaf. You state in your letter that the purpose of such easement is to permit the county to improve and widen an old rural post road and that you would like to cooperate with the County Commissioners if possible.
Although the Governor of Georgia possesses a power of general supervision over all property belonging to the State, he does not have any general right to dispose of such property. This power (disposal) is vested in the General Assembly. Inasmuch as I am unaware of any general statute whereunder it might be contended that the General Assembly has already granted the Governor authority to convey the easement in question, it follows that my personal opinion is that such conveyance would require a resolution of the General Assembly expressly authorizing the Governor to execute the deed of conveyance for and on behalf of the State of Georgia.
It is true that the Governor has a power of general supervision over all property of the State. Georgia Code Ann. 91-402. But this does not extend to any general right to sell or otherwise dispose of such property. As stated by the Supreme Court of Georgia in Western Union v. W. & A.A.R. Co., 142 Ga. 532, 534 (1914) :
"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."
Although the General Assembly has already enacted general legislation which permits the Governor to sell state properties which have become "unserviceable," see Georgia Code Ann. 91-804, 91-805, or properties which the State acquired at a sheriff's sale under an execution in favor of the State, see Georgia Code Ann. 91-503, I am unaware of any statute which would authorize him to convey an easement over the State property here in question to Floyd County. Hence a specific resolution of the General Assembly would appear to be necessary if the proposal to grant the easement is to be effectuated. For previous official opinion of the Attorney General to this same effect, see, e1.g., Ops. Att'y Gen. 405 (1962) ; Ops1. Att'y Gen. 285 (1958-59); Ops. Att'y Gen. 252 (1957); Ops. Att'y Gen. 657 (195456).
March 4, 1965
OPINION TO THE DEPARTMENT OF PUBLIC HEALTH
I am pleased to acknowledge receipt of your recent request for my official opinion on several questions involving the hospitalization of patients in the Milledgeville State Hospital.
For convenience I will state individually each question and then give my official views relating thereto.

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"(1) Can this Department accept adjudication, by a court of appropriate jurisdiction in another State, of legal involuntary admission (commitment) as sufficient grounds to hold a patient involuntarily at one of our institutions if delivered thereto by personnel of the hospital of the other State?"
I have undertaken to outline the provisions of Georgia law which I consider applicable in this State as follows.
The Constitution of the United States, Article IV, Section 1 (Georgia Code Ann. 1-401) provides:
"1-401. 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."
In our relationships with other States, it is my opinion that our courts would be governed by the statutory provisions found in the Georgia Code Ann. 102-110, which reads as follows:
"102-110. 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."
It is also felt that the provisions contained in the Georgia Code Ann. 102-108 may have some applicability. This section reads as follows:
"102-108. 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 recognized as reciprocity. There is an old decision of the Supreme Court of Georgia in the case of Seaborn B. Watts v. Kilburn, 7 Ga. 356 (1849), in which the Court on page 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.'' It is also therein stated as a general rule of law:
"That where the lex contractus and the le,x fori, as to conflicting rights acquired in each, come in direct collusion, 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."

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The law in the State of Georgia with reference to the hospitalization of mentally ill is codified in Chapter 88-5 of the Georgia Code Annotated. Section 88-506 of the Code prescribes the procedure to be followed for the involuntary hospitalization of a mentally ill person, i.e., by written report of an examining Commission composed of two physicians and an attorney.
There is no provision under the 1964 Health Code whereby the Ordinary in any county in Georgia could issue an involuntary hospitalization order based solely upon the report of a duly authorized Commission in another State.
Section 88-517 of the Code of Georgia provides that any individual is entitled to the right of habeas corpus upon proper petition by himself or by a friend to any court authorized to issue such writ. As such writ merely inquires into the legality of the petitioner's restraint, it is my feeling that the Judge of the Superior court, particularly in Baldwin County, would immediately discharge the petitioner on hearing upon the ground that committal was not effectuated under the Georgia statutes.
It is further provided under 88-521 of the New Health Code that if, at any time after an individual is ordered to be taken into custody, or during the period that such individual is receiving care or treatment pursuant to a legal court order, it is discovered that the individual is a nonresident, then the court before which the matter is pending shall seek his transfer to the custody of authorities of the State of his prior residence.
It therefore is my opinion that even though the procedure for hospitalization of a nonresident individual exists, the statutory requirements for such hospitalization include a committal by a legally constituted Commission, together with an order of the Ordinary.
A cursory search discloses no decisions in our appellate courts regarding this particular subject. It is my further opinion, therefore, that the State of Georgia has no specific statute which would authorize the Department of Public Health to accept the adjudication of another State court as its basis and justification for holding such patient in the Milledgeville State Hospital absent a reciprocal agreement between the two States concerned, and that the answer to your question number (1) must be in the negative.
"(2) If such is not possible on a long-term basis, would it be sufficient justification to hold this patient involuntarily until such time as proceedings could be taken through the court of ordinary of the county in which a specific Georgia state institution is located, as now provided for voluntary patients in Section 88-504 of the Public Health Code?"
In response to your second question, it is again my opinion that such question must be answered in the negative.
It is my opinion that a patient cannot be involuntarily held in the State of Georgia under a committal order of another State. However,

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if the Ordinary in the county where such State institution is located ascertains that the patient is a transient or one whose residence cannot be ascertained, then upon written approval of the Judge of the Superior Court of such county that such hospitalization is in the best interest of public welfare, the Ordinary may exercise jurisdiction and may under the provisions of 88-506 (c), after the institution of such proceedings, order the Sheriff to take the patient into custody. I call your specific attention to 88-506 (i), which delineates the exact procedure that must be followed if such proceeding is instituted in a county other than the county of the patient's residence. It is felt that the provisions of 88-504 as discussed in your letter would have no effect on this situation, as such person is not a "voluntary patient" under the provisions of Georgia law.
"(3) In case there are no remedies you can provide in the answers to questions 1 and 2, would an ordinary of the county of residence of the patient be in compliance with Georgia law if he accepted the written application of the superintendent of a hospital in another State accompanied by medical certificate of a fully licensed medical member of the staff of that hospital? (See Section 84-906 of the Medical Practice Act.) If such medial certification could not be accepted as meeting the requirements of Section 88-506 I would appreciate it if you would give us your interpretation of the exact limitations of the definition of 'physician' in Section 88-501 (f). This approach would not be used, of course, in case a relative of the patient was available to make the application. In this case, however, the questions relating to medical certification would still be pertinent."
In responding to your third question, it is the opinion of the undersigned that this question also must be answered in the negative.
It is my opinion that the Ordinary of the county of residence of the patient must have a medical certificate of a physician licensed to practice medicine under the provisions of the Georgia Medical Practice Act as delineated under the provisions of Georgia Code Ann. 88501 (f).
In reply to your last request that I furnish you with my interpretation of the exact limitation of the definition of the word "physician" as outlined in 88-501 (f) of the Georgi.,a Code, it is my opinion that the provisions of 84-901 and 84-927 of the Code will provide such answer. These sections provide as follows:
"84-901. 'Practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' defined.---:-The terms 'practice of medicine.' 'to practice medicine,' 'practice medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries of human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensa-

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tion whatsoever, or the maintenance of an office for the reception, examination and treatment of persons suffering from disease, defect or injury of body or mind, or attaching the title 'M.D.,' 'Oph.,' 'D,' 'Dop.,' 'Surgeon,' 'Doctor,' either alone or in connection with other words, or any other words or abbreviations to his name, indicating that such person is engaged in the treatment or diagnosis of disease, defects or injuries of human beings."
"84-927. Institutional licenses to certain persons.-Notwithstanding the foregoing provision, any person who is a graduate of a medical school approved by the Association of Amerian Medical Colleges or the State Board of Medical Examiners of Georgia or by both such association and such board; and who is employed by the State of Georgia in any State operated institution or who is employed by any medical college in the State of Georgia approved by the State Board of Medical Examiners of Georgia, upon request of the superintendent of such State institution or the dean of such medical college employing said physician, may be granted an institutional license authorizing such physician to practice medicine in the State institution or medical college employing said licensee, under proper medical supervision, which institutional license may be renewed each 12 months so long as the licensee remains in the employ of the State institution or medical college requesting the license, at the sound discretion of the State Board of Medical Examiners: Provided, however, such institutional license shall not be prima facie evidence that the holder thereof meets the minimum basic requirements for examination by the State Board of Medical Examiners or for the issuance of a permanent license to practice medicine."
The only other exception to these above mentioned persons are those physicians employed as such by the United States Veterans Administration or other federal agency. Please note that the three above listed physicians are all licensed to practice in Georgia under both the Georgia Medical Practice Act and the Hospitalization of the Mentally Ill Act and it is my opinion that only these physicians would have the right to issue a medical certification as to the mental illness of any individual that might be hospitalized in Milledgeville State Hospital.
It is therefore my opinion that without a reciprocal agreement between the State of Georgia and the State where the original commitment was effectuated, the only procedure whereby such person could be hospitalized in a State institution would be by strict compliance with the Georgia Code.

705
March 4, 1965
SURPLUS FUNDS OF BOND ISSUE
You state that in 1941 the Appling County Board of Education floated an $8,000.00 bond issue for school construction in the Red Oak School District of the county, that the project was abandoned due to a school consolidation shortly after the bonds were sold, and that although the bond holders have been paid off, the accumulation of dividends in the savings account where the money was deposited has resulted in a surplus of about $12,000.00. You wish to know whether the Appling County Board of Education can close out this account [which presumably was maintained as a sinking fund to meet the bonded obligation] and treat this surplus as a part of its general school fund.
It is my unofficial opinion that upon retirement of the school bonds in question, the surplus monies which remained in the sinking fund became a part of the general school fund of the County Board of Education.
It is well settled in Georgia as elsewhere that a municipality, school board, or other political subdivision possessing funds or proceeds arising from its sale of bonds or other securities, holds such proceeds in trust for the purposes for which the bonds or securities were issued; and it may not have such funds diverted to or used for any other purpose. Walker v. Wheeler, 210 Ga. 432 (1954) ; Board of Education of Paulding County v. Gray, 203 Ga. 583 (2) (1948) ; 64 C.J.S. Municipal Corporations 1934 ( ) . While there is apparently no Georgia decision on the issue of whether or not a project can be abandoned by the issuing authority after the bonds have been sold, it would seem that the majority (and more logical) view is in the affirmative. See, e.g., City and County of Denver v. Currigan, 147 Colo. 125, 362 P.2d 1060 (1961) [the theory being that the governing authorities should not be required to waste public monies in situations where the improvement previously contemplated is no longer necessary or desirable].
While the bonds issued for the abandoned project are outstanding it would appear that the proceeds should be placed in a debt service or sinking fund to provide for payment of the principal and interest of the bonded indebtedness. See Article VII, Section VIII, Par. I of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 26101] which provides in part:
"All amounts collected from any source for the purpose of paying the principal and interest of any bonded indebtedness of any county, municipality or subdivision and to provide for the retirement of such bonded indebtedness, above the amount needed to pay the principal and interest on such bonded indebtedness due in the year of such collection, shall be placed in a sinking fund to be held and used to pay off the principal and interest of such bonded indebtedness thereafter maturing. . . ."
Once again, such funds are held in trust, this time for the purpose of retirement of the bond issue.

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Where as here, a surplus results even after all of the bonds have been retired, it might well be that the first question to be asked is whether the taxpayers of the Red Oak School District could not legally recover the surplus. This question would seem to be answered by Georgia Code Ann. 20-1007, which 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."
Under this provision the Supreme Court of Georgia held in Mitchell County v. Phillip,s, 152 Ga. 787 (1921), that although the county had no authority to levy an assessment for payment of interest on bonds which had not been sold, the taxpayer could not recover since the tax was paid voluntarily and without protest. Therefore, I do not believe in the matter presently under consideration that the taxpayers of the Red Oak School District could legally recover the surplus.
What, then, of the limitations on the school board's right to use such funds? While it is true that the sale proceeds were held in trust prior to the retirement of the bonds (as already noted in this memorandum) it would seem equally apparent that when all of the bonds have been retired the trust is at an end notwithstanding the fact that surplus funds remain. With respect to these funds so released from trust, it is my opinion that the language of the Supreme Court in Spain v. Hall County, 175 Ga. 600 (1932), would control. The Court states at pp. 603-4 of the reported decision:
"When out of a fund raised by taxation for a specific purpose all demands and indebtedness properly chargeable against that particular fund have been paid, or deducted, and there remains a surplus from such fund in the hands of the treasurer, the same then becomes a general fund, which may be lawfully applied to the payment of balances due on warrants drawn against other specific funds not sufficient for their payment, or to any other legitimate liability against the county."
Based upon the foregoing authorities, it is my unofficial opinion that the surplus which remained in the sinking fund after all of the school bonds had been retired, became a part of the general school fund of the Appling County Board of Education. Accord, Ops. Att'y Gen. 249-50 (1954-56).

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March 4, 1965
COMPUTATION OF SENTENCE
This will acknowledge receipt of your letter requesting my unofficial opinion on the application and interrelation of Georgia Laws 1964, p. 489, and Georgia Laws 1964, p. 493.
As you state in your letter, Georgia Laws 1964, p. 489, 490 (Georgia Code Ann. 77-309) provides in part that "the State Board of Corrections shall have no authority, jurisdiction, or responsibility with respect to misdemeanor offenders sentenced ... to confinement in the county or other jail ...." In relation to this same category of prisoners Georgia Laws 1964, p. 493 (Georgia Code Ann. 77-201) provides that such prisooners shall earn four (4) days good time per month which is identical to the statutory good time prescribed for state misdemeanor prisoners and, in addition, "shall earn extra good time in the same amount as may be prescribed from time to time by the State Board of Corrections for prisoners under its jurisdiction."
The latter Act is not intended to place any jurisdiction in the Board of Corrections with regard to the computation of county sentences; rather, it is a means of providing some uniformity throughout the counties of this State in the computation of county sentences without freezing the amount into a statute, as it has continuously been the policy of the State in regard to all prisoners to allow flexibility in the amount of extra good time to be granted. However, this flexibility was intended to be uniform throughout the State, and it was obviously the belief of the Legislature that the Board of Corrections was the only suitable entity on which the desired uniformity could be based. In other words, the Board of Corrections has established a rule regarding only its own prisoners. The Legislature has merely directed that all county custodial officers, in computing the extra good time allowance of prisoners under their jurisdiction, shall adopt the Board of Correction's rule as their own.
On the basis of the foregoing explanation, it is my unofficial opinion that a county prisoner would receive four (4) days per month good time allowance, plus whatever extra good time allowance may be presently prescribed by the Board of Corrections for its prisoners.
In answer to your second question concerning the responsibility for notifying the various county custodial authorities of the Board of Correction's rule relating to extra good time allowances, I presume that technically speaking, the local officals would be responsible for requesting a copy of the rules from the Department of Corrections. However, it is my understanding that the Department of Corrections voluntarily sent copies of their rule to all known custodial officers.

708
March 8, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you inquire as to whether certain policies of the Cherokee County Board of Education pertaining to married students would be upheld if tested in court. The specific policies to which you refer include one which requires a female student to drop out of school when in so advanced a state of pregnancy as to require her to wear maternity clothes, and one which prevents a married student from participating in various school activities, school band, glee clubs, etc.
Although I do not wish to sound ambiguous, your question is not one which permits a yes or no answer. I can only point out that an individual attacking the rules would have to bear the burden of showing them to be so unreasonable as to amount to a gross abuse of discretion on the part of the school board. Where as here, the matter involves a question of "reasonableness," judicial determination would require examination into all of the factual circumstances involved, including the reasons for the school board's adoption of the policies. Unless it is shown that no rational connection exists between the policies in question and a valid school or education purpose, it is likely that the reviewing body would uphold the policies as being within the broad discretion of the county school board.
Georgia Laws 1961, pp. 201-02 (Georgia Code Ann. 32-937) provides:
"The Board of Education of any county, city or independent school district is hereby authorized to promulgate rules and regulations concerning the right of married students to attend the common schools of this State."
and it is well settled that where authority to promulgate rules, regulations and policies respecting a particular subject matter is granted by law to a local board of education, the discretion of the local board in its exercise of such authority is broad. E. g., Pattem. v. Boyd, 211 Ga. 679, 681 (1) (1955) ; Colston v. Hutchinson, 208 Ga. 559, 560 (1951).
In view of the foregoing it becomes apparent that an individual attacking any rule or regulation of a county board of education respecting the right of married students to attend the common schools of this State will have to bear the burden (whether in an appeal to the State Board of Education or in subsequent litigation in the courts) of showing the rule, regulation or policy to be so unreasonable as to amount to a gross abuse of discretion on the part of the school board. See e.g., Poss v. Pickens, 204 Ga. 629, 634 (1949). As applied to the instant situation it would seem that the question would require an examination of the various facts and considerations of the board which led to the adoption of such school policies and rules. [e.g., what the educational basis is, the extent of the "drop out" problem in the county, the reasons for such school drop outs, effect of the policy on student marriages, etc.] If the school board can show any rational connection

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between the policies and a valid educational purpose or aim, I would think that its position would probably be upheld upon review. As already pointed out, however, this is a question which would require full consideration of all surrounding circumstances by the reviewing body and can not be answered with a clear cut yes or no at this time.
March 9, 1965
OPINION TO THE GAME AND FISH COMMISSION
You have asked whether the State Game and Fish Commission could alter recently adopted regulations which are currently in effect on less than thirty days' notice.
Section 45-115 of the Georgia Code Ann. specifically provides that all Commission rules and regulations must be posted at the courthouse door of the county or counties affected and a certified copy filed with the office of the Ordinary of each such county at least thirty days before the effective date of such rule or regulation.
The only exception to that requirement would be in cases of emergency situations such as forest fires or floods.
By the same token that the notice requirement applies to any new rules and regulations, it would also apply to any alteration of existing rules and regulations; and, unless a bona fide emergency situation were to exist, we see no way in which the Commission could circumvent the notice requirement in changing an existing rule or regulation.
March 11, 1965
1964 GEORGIA HEALTH CODE
I am pleased to respond to your letter in which you asked to be advised concerning the fee due the Ordinary for holding a mental hearing.
In this regard, I would like to point out 88-520 of the Georgia Code Annotated. This Section reads in part as follows:
"88-520. Expenses of hearings; how paid.-The ordinary shall draw his warrant upon the treasury of his county for such sum or sums as shall be actually necessary or requisite to defray the expense of the hearing, transportation, and temporary detention and the services of the guardian ad litem representing said patient as provided for in 88-506 hereof and for conveying such patient from such courrty to the hospital. The sum to be paid to the members of the examining committee shall not exceed $10 and actual expenses to each member. The total costs to be paid to the ordinary for such hearing shall be the sum of

710
$25. In the event the application is dismissed as provided in section 88-506 (f) the cost of the ordinary shall be $10: . . . ."
It is therefore my opinion that the total sum that you are authorized to bill the county is the $25.00 listed in the foregoing section.
You also inquire as to what fee, if any, the guardian ad litem appointed by the Ordinary is entitled. Georgia Code Ann. 88-506(d) provides procedure under which the guardian ad litem is appointed. This Section, inter alia, states :
"88-506 (d). Provided, however, that in the event the allegedly mentally ill person shall be financially unable to employ counsel to represent said person in said hearing, then the ordinary shall appoint an attorney to represent said person. The attorney so appointed shall be compensated in the same manner and in the same amount as the members of the commission, but he shall not be a member of the commission."
It therefore appears that the court appointed guardian ad litem would be paid the fee of $10.00 plus his actual expenses.
March 16, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
This letter is in response to your letter requesting an opinion as to the bid of Murray Language Inc. to repair the language laboratory equipment at the Woman's College of Georgia.
Two Georgia Laws address themselves to the problem, Georgia Laws 1956, p. 60 and Georgia Laws 1959, p. 34 Section one of the 1956 law provides:
"It shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit or be likely to benefit, such official or employee. Nor shall any full-time appointive State official or employee influence, or attempt to influence, the execution of any contract, agreement or transaction entered into by the State of Georgia, or any department, agency, commission or authority thereof, for the purchase or sale of any real or personal property, goods or services, or a combination thereof, where such action would result in actual ascertainable pecuniary or other gain to such official or employee."
In the case before us, the employee is neither making or attempting to influence, the proposed contract, nor does it appear that the employee stands to benefit by any actual ascertainable pecuniary or other gain.

711
Section two of the 1959 law provides as follows:
"Whoever being an officer, agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."
It is established that Mr. Mangiafico is not selling anything for himself or on behalf of others and he does not and will not receive any pecuniary profit for the repairs to be done if the bid of Murray Languages, Inc. is accepted.
It is our understanding that the Language Laboratory at the Woman's College was installed through Gates Radio, a company whose business is furnishing broadcasting stations. Gates Radio is in the business of selling, not repairing. The damage to the laboratory was done December 26, 1964, by a tornado. Specifically, there is water damage to the equipment. The college has written for bids from the Murray Languages Inc., Baker Audio and have endeavored to obtain a third bid, but have been unsuccessful as the nature of the work required is highly technical. Both Murray and Baker sent technicians to the campus on separate days in order to estimate the cost of repairs. The Baker bid was about $700 higher than that of Murray Languages Inc. Professor Mangiafico derives no income from any repair work done by Murray, holds no stock in the company and has not and does not at any time act as an agent, or in any similar capacity for Murray Lanuages, Inc.
In relating the facts here to the Georgia Laws, it is our opinion that there is no violation of the Honesty Laws, and that it is in order for you to award the contract for repairs to the low bidder.
March 17, 1965
OPINION TO THE HIGHWAY DEPARTMENT
This will acknowledge and reply to your request for an official opinion regarding Georgia Highway Project I-285-1 (41) 69 Construction, Fulton County, which project covers the construction of Inter-

712
state Route 285, the Atlanta Circumferential Route, from Atlanta and West Point Railroad at U. S. Highway 29 near Red Oak, northerly to Gordon Road.
You state in your letter that the construction of this project will require work to be performed by Western Union Telegraph Company at two locations in order to eliminate conflicts with the construction and allow highway contractors to perform the necessary work in their contracts.
You further state that Western Union Telegraph Company presently occupies a portion of the existing right of way of Atlanta and West Point Railroad at one location and Atlantic Coast Line Railroad at another location. The proposed construction calls for an overpass to be constructed over Atlanta and West Point Railroad and Western Union at one location, and for an underpass to be constructed under Atlantic Coast Line Railroad and Western Union at another location.
You also state that in each of the above situations the construction will not benefit either the Railroad or Western Union. In your request you enclosed various information which consists, among other things, of correspondence from the Bureau of Public Roads, excerpts from Western Union Agreement with Atlanta and West Point Railroad, excerpts from Western Union Agreement with Atlantic Coast Line Railroad, and applicable Policy and Procedure Memoranda on the subject as published by Federal Bureau of Public Roads.
You then request my official opinion of the State Highway Department's responsibility for assuming the cost of adjusting Western Union's facilities when Western Union occupies a portion of the railroad right of way and the construction will not benefit the railroad.
In my official opinion to you of January 16, 1962, (Ops. Att'y Gen. 282 (1962) I ruled that a railroad had the right to require a tenant to make the necessary adjustments, without cost to the State, in a situation that arose on Project SG-2120 (1) where there was benefit to the railroad. However, your question presents an entirely different problem because in the present situation there is no benefit to the rairoads or Western Union.
Section 104-203 of Georgia Code Annotated, provides that any duly incorporated telegraph company having the right to do business in this State shall have the right to construct, erect, and maintain upon the right of way of the several railroad companies and along the lines thereof, their posts, fixtures, and wires, and to operate the same. Pursuant to this statutory authority, Western Union entered into the general agreement between Western Union Telegraph Company and Atlanta and West Point Railroad dated November 22, 1928, effective January 1, 1929, and the general agreement between the telegraph company and Atlantic Coast Line Railroad, effective July 1, 1932. Certainly, the language of these agreements is involved in the question here presented. I therefore call your attention to the applicable provisions of said contracts. Paragraph 12 of the agreement between the telegraph company and Atlanta and West Point Railroad Company provides as follows:

713
"12. Whenever the Railway Company requests the change from one location to another on its rights of way of any pole or conduit line or component part thereof of the Telegraph Company in order to meet the requirement of the Railway Company in the use of its rights of way for its own railroad purposes, or to permit the construction of any side track, spur track or other similar work for a third party, the Telegraph Company shall, at its expense, without delay, perform such work of relocation and in case such change is for the benefit of said third party the Railway Company shall either reimburse the Telegraph Company or compel such third party to reimburse the Telegraph Company for the entire cost of said work provided, however, that the Telegraph Company shall not under any circumstances be required to remove or relocate its telegraph lines or any component part thereof from or off the railroad right of way except for short sections and in such short sections the Railway Company shall furnish other and suitable right of way therefor without cost to the Telegraph Company for a term concurrent with the continuance of this agreement."
Your further attention is called to paragraph 40 of the Agreement between the Telegraph Company and Atlantic Coast Line Railroad, which is as follows:
"40. Whenever the Railroad Companies require any person or corporation, not a party hereto, (1) to pay the cost in whole or in part of the construction of that portion any side track, spur track, building, or other structure which may be located outside of or beyond the point of clearance thereof and located on or adjacent to the rights of way or lands of any line of railroad to which this agreement applies, or (2) to pay the cost in whole or in part of any changes in the location of any side track, spur track, building, or other structure, in order to provide for the construction of such side track, spur track, building, or other structure, the Railroad Companies will endeavor to have such person or corporation pay the Telegraph Company the cost (excluding on-line transportation charges) in whole or in part, of changing the location of a telegraph line, or any part thereof, made necessary by reason of said construction, or of said changes, upon the same basis as applied between the Railroad Companies and such person or corporation, but no such person or corporation shall be asked to pay the cost of replacing that part of the life of any property which in the ordinary course of events may have expired or any additions and betterments made in order to increase the capacity of such property replaced. 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

714
the entire cost thereof. Nothing in this paragraph shall be construed as requiring the Railroad Companies to pay any greater share of the cost of work occasioned by a third party than the Railroad Companies would be obligated to pay if said work were occasioned by the Railroad Companies' own requirements."
These agreements cover the operations of Western Union on Railroad right of way and sets forth the rights of parties in detail. They are currently in effect.
The Highway Department has already agreed with both railroads to relocate their facilities without cost to the railroads, under Title 23, U. S. Code, Section 104. Therefore, the only question remaining is the State's obligation to Western Union, if any.
The Bureau of Public Roads circular memorandum letter of January 27, 1961, provides that the issuance of Policy Procedure Memorandum 30-3 (5) is the result of extended negotiations with Western Union Telegraph Company, aimed at providing reimbursement to Western Union Telegraph Company of amounts commensurate with its costs and, at the same time, providing for streamlining of the arrangements attendant to the auditing of such costs, and that the provisions of this issuance are more or less self-explanatory; that is, the Bureau of Public Roads has accepted as its commitment the amount of a railroad's liability under the terms of its contract with Western Union Telegraph Company. The Bureau of Public Roads indicates by this circular memorandum that they will not be concerned with interpretations of general rules of reimbursement set forth in the basic policy memorandum (Policy Procedure Memorandum 30-3), it being recognized that the Railroad has committed itself to compensating Western Union in accordance with terms of the contract. The circular memorandum mentions the fact that it is expected that during the initial stages of application of this policy there will be questions of interpretations and intent of Western Union-Railroad contracts.
The Georgia Constitution provides that private property may not be taken without "... just and adequate compensation being first paid . . .," Georgia Constitution, Article I, Section III, Paragraph I (Georgia Code Ann. 2-301); Fifth Amendment, United States Constitution (Georgia Code Ann. 1-805); Woodside v. City of Atlanta, 214 Ga. 75 (1958) ; and State Highway Dept. v. Western Union Tel. Co., 218 Ga. 663 (1963). Clearly, therefore, unless the telegraph company has contracted away its rights to insist on adequate compensation for the taking of its property by requiring expenditure of its own funds to finance the cost of relocating its facilities for the benefit of the public, no basis exists here for the State so to burden it.
It thus becomes necessary to examine the contractual provisions already quoted. Section 20-702 of the Georgia Code Annotated, provides that the cardinal rule of construction of a contract is to ascertain the intention of the parties. If that intention be clear and it contravenes no rule of law, and if sufficient words be used to arrive at the intention, it shall be in force, irrespective of all technical or

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arbitrary rules of construction. Examination of the applicable quoted contractual provisions clearly shows the true intent of the parties. The language of both contracts plainly states that the railroad will not require the telegraph company to bear this cost - the language places a direct burden on the railroad companies to "endeavor to have the public authorities requiring such change in location pay the Telegraph Company the entire cost thereof."
The only reason for Western Union's incurring any expense is on account of State Highway Department's constructing new facilities over and under the railroad tracks, and the language of the contracts is, in my opinion, clear and undisputed as to the rights of the telegraph company. It is therefore clear that, in view of the undisputed facts and applying the cardinal rules of construction of contracts, the public must pay this charge. Federal statutes likewise place the burden of payment on the public rather than on the utility. Section 123 (a) of Title 23, United States Code Annotated. A cursory reading of that section indicates that it specifically places the duty of payment on the Federal Government unless such payment "violates the law of the State or violates a legal contract between the utility and the State." No contract exists between the telegraph company and the State of Georgia relative to this situation. Thus, unless a law of the State is violated, the Federal Government has specifically, by statute, assumed the burden of ninety per cent of this cost.
No Georgia Legislature has ever enacted any law relative to this matter. A careful examination of Chapter 95 (Roads, Bridges and Ferries) of the Georgia Code Annotated, reveals no section relative to this subject except 95-1618, which declares any portion of the State law to no effect if in conflict with the Federal law providing for Federal contribution to highway construction.
Since the courts have never had for consideration a similar factual situation, no decisions can be looked to as State law which would be violated by Federal reimbursement to the State of such cost. Indeed, this is the first time a factual situation has arisen requiring a legal interpretation of this situation in Georgia.
From the preceding analysis, it is apparent that Federal law contemplates that Federal funds will be used to reimburse the State for any expenses it occurs in relocating utility facilities unless a contract or State law is violated.
Clearly, 12 and 40 in the subject contracts control the situation here involved since this relocation is "on account of the construction of highways or public improvements."
In view of the above, it is my official opinion that no contract exists between the State and the utility which would be violated by having the State reimbursed by the Federal Government for the cost of this relocation. It is my further opinion that no law of this State would be violated under such circumstances. Therefore, in view of the law on interpreting contracts as applied to the pertinent sections of the agreements between the telegraph company and the railroads and in view of the absence of a contract with the State or an applicable

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State law, it is my official opinion that the State Highway Department must assume the costs of adjusting Western Union's facilities under the circumstances you describe.
This opinion is intended to apply only to the particular facts and circumstances set forth herein.
March 17, 1965
OPINION TO THE INDUSTRIAL LOAN COMMISSIONER
This is in reply to your letter requesting my official opinion upon the following questions:
1. Does the Georgia Industrial Loan Act, as amended, confer upon the Industrial Loan Commissioner power and authority to require by rule that all loans must be made in the office of the licensee described in the license?
2. If the answer to question one is in the affirmative, may the Commissioner then provide, by way of exception to the general rule, that special permission may be given to selected licensees to make the loan at some other place?
Section 6 (a) of the Georgia Industrial Loan Act (Georgia Laws 1955, pp. 431-35 as amended, 1963, p. 370) (Georgia Code Ann. 25-306 [a]) provides in part as follows:
"The said Commissioner is hereby granted power and authority to make all rules and regulations not inconsistent with the provisions of this Act which in his judgment shall be necessary and appropriate to accomplish the purposes and objectives of this Act, including, without limitation, the power and authority to make such rules and regulations regulating and controlling the manner in which loans of $2500 or less may be made under this Act ...."
The purpose of the Act as stated in Section 2 "... is to authorize and provide regulation of the business of making loans of $2500 or less and to bring within the regulation of the Act and within its provisions all loans of $2500 or less, . . . ."
You pointed out in your letter that 9 of the Act, Georgia Code Ann. 25-309, contains the only reference in the original Act to the licensee's place of business and that it declares that no more than one place of business may be maintained under the same license. You further pointed out that the 1963 Session of the General Assembly amended this section to specify a procedure for a change of location of an office and that the previous statute regulating small business loans as codified from Georgia Laws 1920, p. 215, in Georgia Code Ann. 25-308:
"No person, partnership or corporation so licensed shall make any loan provided for by this Chapter under any other

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name or at any other place of business than that named in the license ...."
In order to answer the first question, it is necessary to determine whether or not such a rule is inconsistent with the present provisions of the Industrial Loan Act and whether or not such a rule is a reasonable one designed to accomplish the purposes and objectives of the Act.
Since the General Assembly doubtless had the 1920 Act in mind and possibly used it as a guide in fashioning the present Act, it is proper that the present Act be contrasted with the previous statute in interpreting the meaning of the language of the present Act. Acree v. The State, 122 Ga. 144 (1905); Hannah v. Larche, 363 U. S. 420, 4 L.ed2d 1307, 80 S.Ct. 1502 (1960).
While both the old and new provisions make reference to the place of business of the licensee, only the prior provision makes direct reference to the place of making loans. However, both provisions do have the effect of restricting the licensee's area of operations. The language employed in the present Act which prohibits the licensee from maintaining more than one place of business is, in my opinion, a recognition by the Legislature of the continued need to control the latitude of the licensee's operations.
In interpreting a law which creates and empowers an administrative agency, the prime object is to ascertain and carry out the intent of the Legislature. Lamons v. Yarbrough, 206 Ga. 50 (1949), Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1950). One of the cardinal rules to observe in ascertaining the intent of the Legislature is to look to the old law and the evil to be corrected. Georgia Railroad & Banking Co. v. Wright, 124 Ga. 596 (1905). Particular language should be construed in the light of the purposes of the legislation, especially a declared purpose and policy. Federal Tl-ade Commission v. Mandel Bros., Inc., 359 U.S. 385, 79 S.Ct. 818 (1959) ; Peerless Fixture Co. v. Reitel, 355 Mo. 144, 195 S.W. 2d 449 (1946). The language employed in the present Act, when construed with its declared purpose of regulating the making of loans of $2500 or less, expresses the Legislature's intent to continue to limit the area or scope of operations of small loan lenders at least to some extent, as was provided in the old law.
In determining whether an agency has a certain power, it has been held in many cases that the authority given should be liberally construed in light of the purposes for which it was created. Falsone v. U.S., 205 F. 2d 734 (5th Cir. 1953), cert. den. 346 U. S. 864, 98 L.Ed. 375, 74 S.Ct. 103 (1953); Coffman v. State Board of Examiners in Optometry, 331 Mich. 582, 50 N.W.2d 322 (1951); State ex rel. Freeman v. Zimmerman, 86 Minn. 353, 90 N.W. 783 (1902). It has also been held that the authority of the agency is not limited to matters specifically authorized or stated in the statute. It was held in the case of United States v. Storer Broadcasting Co., 351 U.S. 192, 100 L.Ed 1081, 76 S.Ct. 763 (1955), that an agency .authorized to grant licenses, if it finds that the public interest is thereby served, may enact rules containing limitations against licensing not specifically

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authorized by statute where the agency is granted general rulemaking power not inconsistent with the Act or law.
It is uniformly held that a rule or regulation to be valid may only implement the law and is valid only as a subordinate rule when found to be within the framework of the policy which the Legislature has sufficiently defined. Hynes v. Grimes Packing Co., 237 U.S. 86, 69 S.Ct. 968 (1949) ; Glustrom v. State, 206 Ga. 734 (1950) ; Crowley v. Seigniores, 213 Ga. 810 (1958) ; Hughes v. Kisteler, 76 Ga. App. 885 (1948) ; Southern Co-operative Foundry Co. v. Drummond, 76 Ga. App. 222 (1947). However, in the instant case, it is my opinion that the language used in Section 6 (a) specifically empowering the Commissioner to make rules and regulations which he considers necessary and appropriate to regulate the small loans industry, including the regulating and controlling of the manner of making the loans, sufficiently defines the framework for a rule limiting the places at which loans may be made. In view of this and of the apparent intent of the Legislature to limit to some extent the scope of operation of small loan lenders coupled with the declared purpose of the Act leads to the apparent conclusion that the rule in question is not inconsistent with the Act.
Next, we must consider the question of whether or not the rule in question is a reasonable one designed to accomplish the purpose of the Act. It has been held that rules and regulations of administrative agencies must be directed to the accomplishment of the purpose of the statute under which they are made, tend to its enforcement, or be reasonably adopted to serve the end in view. McCarthy v. Coos Head Timber Co., 208 Or. 371, 302 P.2d 238 (1956) ; States' Rights Democratic Party v. State Board of Education, 229 N. C. 179, 49 S.E. 2d 379 (1948) ; Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364 (1936); Medical Properties, Inc. v. North Dakota Board of Pharmacy, 80 N.W. 2d 87 (1956). Whether a regulation is reasonable depends on the character or nature of the condition to be met or overcome, and the nature of the subject matter of a rule may affect its reasonableness. McCanless v. State, 181 Tenn. 308, 181 S.W. 2d 154 (1944) ; Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 155 (1947). Thus, the regulation of certain activities involving mere privilege, such as the sale of intoxicating liquor or the conduct of horse racing, is accorded liberal judicial support. Manchester Press Club v. State Liquor Commission, 89 N.H. 442, 200 A. 407, 116 A. L. R. 193 (1938); State ex rei. Morris v. W.Va. Racing Com., 133 W.Va. 179, 55 S.E. 2d 263 (1949); McCanless v. State, supra.
In order to set aside a regulation, it must be clearly unreasonable. Stranger v. Vocafilm Corp., 151 F.2d 894, 162 A.L.R. 216 (2d Cir. 1945). If reasonable minds may well be divided on the question, the administrator must be upheld. Rible v. Hughes, 24 Cal.2d 437, 150 P.2d 455, 154 A.L.R. 137 (1944). It must be shown that no reasonable administrator would have made such a regulation and that it is so lacking in reason that it is essentially arbitrary, Marbury v. Cole, 286 N. Y. 202, 36 N.E. 2d 113, 136 A.L.R. 734 (1941) ; Jones v. City of Atlanta, 51 Ga. App. 218, 221 (1935).

719
In the instant case the Legislature empowered the Industrial Loan Commissioner to regulate the small loan industry. The Commissioner is concerned, of course, with evils or possible evils within this industry in promulgating rules and regulations regulating it. I am not informed of all the facts which prompted the rule in question. However, I am informed that the rule has the effect of not only controlling and regulating competition among lenders but also affords a degree of protection to borrowers in that they are protected from being coerced or high pressured into renewing loans when collections are attempted outside the place of business of the licensee.
In view of these facts and of the foregoing decision, it is my opinion that the rule in question qualifies as a reasonable one designed to accomplish the purpose of the Industrial Loan Act and should the Commissioner, in his judgment, determine that such a rule is necessary and appropriate to the regulation of the small loan industry, it would be valid. The answer, therefore, to your first question is yes.
Your second question raises the issue of possible discrimination of treatment of licensees. In the exercise of every state power emanating from the people, there enters the constitutional command of equal protection of the laws, which means equal rights for all similarly situated. Commonwealth et rei. Meredith v. Frost, 295 Ky. 137, 172 S.W. 2d 905 (1943) ; Simpson v. The State, 218 Ga. 337 (1962). Rules and regulations should be uniform and framed to avoid unequal operation on persons of the same class. U. S. v. Ripley, supra. Where individuals or classes of individuals are treated differently on the basis of classification established by administrative rule, the equal protection clause requires that such classification be reasonable and not be arbitrary or capricious. Railroad Com. v. Shell Oil Co., 139 Texas 66, 161 S.W. 2d 1022 (1942).
There is authority for the proposition that the equal protection clauses of the State and Federal Constitutions protects rights alone and have no reference to mere concession or mere privileges which may be withheld by the State or municipality at will and that discrimination in the grant of a favor is not a denial of the equal protection of the law to those not favored. Schlesinger et al. v. City of Atlanta, 161 Ga. 148 (1926) ; Packard v. Banton 264 U.S. 140, 44 S.Ct. 257 (1923). See also 11 Ga. B.J. 77; 64 A.L.R. 998. These cases have dealt primarily with city ordinances regulating the licensing of taxi cabs.
Without getting into the question of whether the instant case involves a right or a mere privilege it is uniformly held that a regulation which involves a classification on a reasonable basis does not deny equal protection of the laws or create improper discrimination. Guiseppi v. Walling, 144 F.2d 608 (2d Cir. 1944), aff'd. 324 U.S. 244, 65 S.Ct. 605 (1945); Hughes v. State Board of Medical Examiners, 162 Ga. 246 (1926) ; Lamons v. Yarbrough, 206 Ga. 50, 57 (1949).
It is my opinion that the Industrial Loan Commissioner may give special permission to certain selected licensees to make loans at places other than the place of business of the licensee provided there is a reasonable basis for classifying such licensees in a separate category to receive this special permission. It is reasonable to assume that the

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evils sought to be eliminated by the rule limiting loan making to the licensee's place of business would not be prevalent in every licensee's business. If the classification, set up by rule, is based upon facts which show differences and distinction which have a proper relation to the particular licensees being dealt with and to the purpose sought to be accomplished the equal protection clause will, in my opinion, be satisfied. The answer, therefore, to your second question is also yes.
March 23, 1965
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
In your letter you related certain facts concerning Dr. Reinis Sinats, Deceased, who left a minor son, John Sinats, as his beneficiary, and to whom the Employees' Retirement System owes in excess of $13,000 from Group Term Life Insurance and refund of contributions.
John Sinats is now residing in Oakland County, Michigan, and a Mr. Paulis Sinats was designated by Dr. Sinats as guardian of his son and has qualified as such with the Oakland County, Michigan, Probate Court. You asked whether the papers of guardianship issued there would be satisfactory to uphold payment to Mr. Sinats on behalf of the beneficiary, John, or whether papers of guardianship must be issued in the State of Georgia.
I have reviewed Title 49 of the Georgia Code Annotated concerning guardian and ward, and particularly Chapter 49-4, as recently amended. I do not feel that papers of guardianship need be issued in the State of Georgia. I think that under the "full faith and credit" clause the guardianship of Michigan could be recognized and payment made to that guardian. However, as a matter of precaution, I feel the safeguards provided by Chapter 49-4, et seq., should be followed. Briefly, these would consist of having the foreign guardian come before the Ordinary here in Fulton County, who would, I feel, have jurisdiction, as the funds are located here, and make application for an order authorizing and directing the Employees' Retirement System to make transfer to that guardian, and for that guardian to move the funds to Michigan for the use and benefit to John Sinats.
You further noted, through attached correspondence, that an attorney had been retained in Milledgeville by the Sinats Estate. I am certain this in because there are properties, whether realty or personalty, located in Baldwin County. That being the case, there is the distinct possibility the will might be offered for probate here, and, if so, that a guardian would be appointed by the Baldwin County Court of Ordinary. Should this occur, of course it would be much preferable that the funds be paid to a local guardian. However, as noted above, there is provision for the Michigan guardian to receive payment of funds from this State; and you could, should you choose to assume the responsibility, make payment directly to the Michigan guardian upon his furnishing properly authenticated and certified indicia of his appointment as guardian by the probate court of that state.

721
March 25, 1965
OPINION TO THE GOVERNOR OF GEORGIA
This is in reply to your letter wherein you request confirmation as to the constitutionality of House Resolution No. 164. The resolution in question instructs the State Board of Education to discontinue collection (by the withholding of state funds) of certain overpayments made to the board of education of Johnson County. The balance due from the county board of education on such overpayments was slightly less than $41,000.00.
It is my opinion that House Resolution No. 164 complies with all constitutional requirements pertaining to the adoption of resolutions by the General Assembly and is not violative of any substantive section of the State Constitution.
Looking first at the procedural requirements, I note that the resolution appears to have been read three times and on three separate days in each house, appears to have been approved by a majority of the membership of each house, and bears what appears to be the signatures of the Speaker of the House and President of the Senate.
Concerning possible violations of substantive sections of the State Constitution (as opposed to those provisions which merely relate to procedure), the only provision that I am aware of which might reasonably be contended to be violated by H. R. No. 164 is Article VII, Section I, Par. II (1) of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 2-5402 (1)]. The pertinent portion ot this provision states:
"The General Assembly shall not by vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association."
It is my opinion, however, that H. R. No. 164 does not violate this constitutional provision for the reasons set forth in my "unofficial opinion" of March 16, 1965, to Honorable Emory L. Rowland, Representative of Johnson County. That opinion was based on various decisions which construed this constitutional prohibition of gratuities as being applicable only to gifts to private persons or organizations and not to grants to public bodies for public benefit. See State of Georgia v. The Trustees of the Cincinnati Southern Railway, et al. 248 U. S. 26 (1918) ;McLucas v. State Bridge Building Authority, 210 Ga. 1, 11 (1915); Sigman v. Brunswick Port Authority, 214 Ga. 332, 335 (1958).
March 26, 1965
OPINION TO THE GOVERNOR, STATE OF GEORGIA
This is to acknowledge your letter in which you request my official opinion as to whether H. B. 583 which amends the Act creating

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emeritus offices for certain state house officials meets all constitutional requirements.
House Bill No. 583 by Messrs. Pope of Cherokee and others amends an act approved March 7, 1957 (Ga. L. 1957, p. 206) as amended by an act approved March 6, 1962 (Georgia Laws 1962, p. 602). Under the amendatory act of 1962 the law applied to all Constitutional officers of this State. The 1965 amendatory act limits the application of the law to the State Treasurer, State School Superintendent, Comptroller-General, Secretary of State, Attorney General, Commissioner of Labor, Public Service Commission, and the Commissioner of Agriculture. The 1965 amendatory act eliminates by its terms Justices of the Supreme Court, Judges of the Court of Appeals, Superior Court Judges, and Solicitors General, which were included under the 1957 act as amended by the act of 1962.
The Constitution of Georgia of 1945 provides in Art. I, Sec. I, Par. II, that: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." The Fourteenth Amendment to the Federal Constitution provides in part: "... nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."
Under the amendatory act of 1965, House Bill No. 583, the law would be applied differently to different Constitutional officers in that the Constitutional officers named would be under the provisions of the 1965 amendment, while the members of the judiciary named and solicitors general would be exempted from its provisions. In all cases where the laws are applied differently to different persons under the same or similar circumstances equal protection of the law is denied. Under many decisions of the Supreme Court of Georgia and the Supreme Court of the United States, the amendatory act of 1965, House Bill 583, is unconstitutional and void in that the law is applied differently to different Constitutional officers of this State. In this connection see:
City of Valdosta v. Harris, 156 Ga. 490 (1923); Baugh v. City of LaGrange, 161 Ga. 80 (1926) ; Northwestern Mutual Life Ins. Co. v. Suttles, 201 Ga. 84 (1946) ; Moultrie Milk Shed v. City of Cairo, 206 Ga. 348 (1950); Frankel v. Cone, 214 Ga. 733, 737 (3) (1959) ; Buchanan v. State, 215 Ga. 791 (1) (1960) ; First National Bank of Atlanta v. State Highway Dept., 219 Ga. 144 (1963); Peterson v. City of Greeneville, 373 U. S. 244 (1962) ; Lombard v. Louisiana, 373 U. S. 267 (1962); Maryland Committee for Fair Representation v. Tawes, Governor, 377 U. S. 656 {1964); Reynolds v. Sims, Vann v. Baggett, Secretary of State of Alabama; McConnell v. Baggett, Secretary of State of Alabama, 377 U. S. 513 (1964).
In my opinion the amendatory act of 1965, House Bill No. 583, clearly and unmistakably violates both the Georgia and Federal Constitutional provisions cited.

723
March 30, 1965
ORDINARIES
This is to acknowledge receipt of your letter requesting an unofficial opinion on the legality of the following situations:
"1. Ordinaries holding traffic court from day to day during term time instead of the first Monday in each month.
"2. Ordinaries accepting and disposing of cash bonds in traffic cases if the bond only can be forfeited on the first Monday in each month, and if defendant can not be given a specific date to appear when given the cash bond receipt."
In answer to the first question, your attention is called to Georgia Code Ann. 24-2104 (Georgia Laws 1962, pp. 519, 520), which is as follows:
"The ordinary may transact business at any time except Sundays, and the ordinary of each county may close his office at 12 o'clock noon on not more than one other day in each week, and where authorized or not prohibited by law, any hearing or other proceeding may be had and any order or judgment may be rendered at any time in term time or vacation: Provided, however, nothing herein shall be construed as prohibiting the ordinary from providing by calendar for the orderly and uniform transaction of business on designated days."
The second question is, in the main, controlled by Georgia Code Ann. 27-511 (Georgia Laws 1962, pp. 530, 531), which reads as follows:
"If any per~on arrested for a violation of the traffic, game, fish or boating laws of the State of Georgia gives a cash bond as above provided for his appearance and fails to appear at the next regular term of court convening thereafter without legal excuse therefor, then and in that event, in the discretion of the court, said cash bond shall then and there be forfeited without the necessity for the statutory procedure provided for in the forfeiture of statutory bail bonds, and a judgment may be entered accordingly, in the discretion of the court, ordering the case disposed or and settled and the proceeds shall be applied and distributed as any fine would be. However, if the judge shall not desire to enter, in his discretion, a judgment ordering the casE;) disposed of and settled, the forfeiture of the cash bond shall not be a bar to a subsequent prosecution of the arrested person for such violation."
Appearance is controlled by notice. "When individuals are to be affected by any order or judgment of said Ordinary, such individuals shall have reasonable notice of the time and place of hearing." Georgia Code Ann. 23-706.

724
March 31, 1965
OPINION TO THE GOVERNOR OF GEORGIA
Pursuant to your letter of request, I have examined House Resolution 124-192 for constitutionality.
Although I am in no position at the present time to ascertain what will be included in the itemized bill of costs and expenses authorized by the resolution, it is my opinion that the cost of habeas corpus cases tried in the various state courts are legitimate expenditures of the State. Further, it is my understanding that similar resolutions covering cost of habeas corpus cases have been adopted by past sessions of the General Assembly. The expenditure authorized by the subject resolution is higher than past resolutions due to the fact that through oversight a resolution was not adopted in the 1964 session of the General Assembly and because the number of habeas corpus cases tried in the City Court of Reidsville has increased sharply in the past two years.
By way of explanation, the normal cost incident to each habeas corpus case is ordered by the court to be assessed against the State. In addition, it is necessary in cases which are appealed to the Georgia Supreme Court that the entire record be transcribed by the Clerk. In most cases, this is an expense which is normally borne by the appealing party (the prisoner) but due to the indigency of these individuals they are unable to pay. It is this cost which the State is unable to pay without legislative approval. I have advised the State Board of Corrections and the Clerk of the City Court of Reidsville that the Board of Corrections can make payment of normal expenditures incidental to trial if they are submitted on a per case or monthly basis but this does not include the large cost of transcribing records for prisoners.
Therefore, it is my opinion that the Board of Corrections is morally bound to pay the normal expenditures of trail in habeas corpus cases. However, the cost of transcribing records for appeal should possibly be assessed against the general fund of the State rather than the Board of Corrections as it bears no direct relation to the normal incidents of trial. However, as an agency of state government, I can find no prohibition to such costs being paid by the State Board of Corrections.
In addition, I would suggest that general legislation be prepared on this subject for approval by the General Assembly at its next regular session. Possibly such a bill could be part of a comprehensive revision of the State's post-conviction remedies.
In conclusion, it is my opinion that House Resolution No. 124-192 is constitutional as to both form and subject matter.

725
April 1, 1965
GOOD SAMARITAN LAWS
I am pleased to acknowledge receipt of your recent letter in which you ask several questions concerning the "Good Samaritan" law, in the State of Georgia.
The 1962 session of the General Assembly of Georgia enacted a statute which is codified as 84-930 of the Georgia Code Annotated to promote the health and welfare of the State of Georgia by relieving from civil liability one who renders emergency care at the scene of an emergency or accident, and provides as follows:
"84-930. Relief from civil liability of practitioners rendering emergency care.-Any person, including those licensed to practice medicine and surgery pursuant to the provisions of this Chapter, and including any person licensed to render service ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor, shall not be liable for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person." (Emphasis added)
This "Good Samaritan" statute, by exempting the party who renders aid at the scene of an accident from liability, removes the anomaly of imposing liability on the person who attempts rescue and is held civilly liable for any injury caused by his improvident handling of the situation.
I also would like to call your attention to Georgia Code Ann. 68-1620, which provides:
"68-1620. Duty to give information and render aid.-The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator's or chauffeur's license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person."
The above quoted section imposes upon all parties involved in any accident, though not at fault, to take positive action to render comprehensive aid, including transporting injured parties to medical care if necessary or if requested.
The 1962 "Good Samaritan" law, offers a progressive step in seeking to encourage competent parties to render emergency aid on

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the assumption that persons will give such aid if they are not faced with civil liability should they be guilty of misfeasance in rendering such assistance. You will also note that the statute expressly provides that those licensed to practice medicine or surgery, or a person licensed to render services ancillary thereto are within the protection of the statute. However, it appears that the words "in good faith" will probably be construed by the courts to mean that a medical doctor guilty of gross negligence in the treatment of such person did not render the care "in good faith."
I am sure that you have of late through the medium of nationally televised programs glorifying the physician, received the impression that a doctor who renders emergency care at roadside will be subjected to a malpractice suit. The concept of the doctor's liability for emergency care rendered under such circumstances has, in my opinion, been magnified out of practical proportions. However, as the result of such publicity, and the surge of created interest, I find upon a cursory look that 28 States have recently adopted the so-called "Good Samaritan" laws. These states are Alaska, Arkansas, California, Connecticut, Georgia, Indiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming.
All of these laws are designed to exempt physicians from civil liability for any negligent acts or omissions arising out of the rendering of treatment or aid at an accident scene or in an emergency. A cursory inquiry into all of the reported malpractice decisions has failed to disclose a single such "roadside" instance in which the physician was held liable.
April 7, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This is to acknowledge receipt of your letter requesting an official opinion concerning the destruction of slot machines by the' Georgia Bureau of Investigation and the State Patrol. Your question addresses itself to whether the G.B.I. or troopers can destroy slot machines without a court order.
Georgia Laws 1945, p. 351 (Georgia Code Ann. 26-6508) relates as follows:
"26-6508. . . . or thing used to assist or in connection with keeping, maintaining or carrying on any lottery scheme or device for hazarding money or valuable thing shall be seized by any sheriff or any other arresting officer, who shall report the same, within 10 days after said seizure, to the solicitor general of the superior court having jurisdiction in the county where the seizure was made, whose duty it shall be within 10 days after the time he received said notice to institute condemnation proceedings in said court by petition, a copy of which shall be

727
served upon the owner, lessee or lienholder of such vehicle or conveyance, if known, and if the owner, lessee or lienholder is unknown, notice of such proceedings shall be published once a week for two weeks in the newspaper in which the sheriff's advertisements are published. If no defense shall be filed within 30 days from the filing of the petition judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. . . ."
It appears, therefore, that the proper procedure would be for the G. B. I. and the State Troopers to inform the Solicitor General that the slot machines have been seized so that he may take appropriate action.
April 8, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge your letter in which you request our opinion as to whether an individual must pay a $10 restoration fee under the provisions of the Safety Responsibility law in order to maintain his driver's license.
A reading of the correspondence which accompanied your letter indicates that the individual complied with the provisions of the Safety Responsibility law prior to the effective date of your order under which his license would be suspended. Georgia Code Ann. 92A-615.2 provides for the payment of the restoration fee when the license is suspended and proof of financial responsibility is a prerequisite for reinstatement. It woud appear that the provisions of this Code Section .are limited to cases in which there has been an actual suspension or revocation of the license.
The conclusion suggested by your letter and attached correspondence is that order of suspension of this individual's license had not become effective prior to his compliance with the Safety Responsibility law.
In fact, compliance avoided the necessity of the license being suspended. Therefore, it was not necessary that the license be reinstated. This being the case, it would naturally follow that the individual need not pay the restoration fee.
April 8, 1965
MARRIAGE
I am pleased to reply to your several questions relative to the 1965 amendment to 53-102 of the Georgia Code Annotated, entitled "Husband and Wife."

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With regard to the <~proof of pregnancy" proVISIOn, it is my unofficial opinion that the language used by the legislature clearly manifests an intention to require the certificate by the physician stating that the female applicant is, in his opinion, pregnant, be signed in his own handwriting. The Act clearly shows that the physician must be a physician licensed to practice under the provisions of Chapters 84-9 or 84-12 of the Georgia Code Annotated.
The Act further provides the procedure that must be followed if the parents are not able to give their consent in person. In such instance it is mandatory that there be included an affidavit signed by a licensed physician 'attesting the fact of the physical inability of the parents to give the required consent in person. The parents must then execute an affidavit containing their consent that the underage parties be allowed to marry.
The new waiting period is three (3) days. Section 53-202 was amended to provide that a three-day waiting period must be observed unless one of three conditions exist. The new section reads as follows:
"Provided, however, no marriage license shall be issued earlier than 3 days following the application therefor, unless the female applicant is pregnant and such pregnancy is proved by a certificate signed by a licensed physician of the State of Georgia, or unless the applicants are the parents of a living child born out of wedlock, or unless both applicants have been proved to be 21 years of age or older, in any of which events a marriage license may be issued immediately. Any person who issues such license in violation of this paragraph, unless the parties fall under the 3 exceptions as hereinbefore mentioned, shall be guilty of a misdemeanor and upon conviction thereof shall be punished as a misdemeanor. Such wilful conduct shall constitute malpractice in office."
In your second question you ask if the blood test for syphilis is retained in the new law. Georgia Code Ann. 53-215, requiring the blood test for syphilis remains the law since the legislature did not change this section in any manner.
In answer to your third inquiry, I am pleased to call to your attention the new provisions of 53-208, which now reads as follows:
"53-208. Liability of ordinary for issuing license unlawfully.-Any ordinary who by himself or clerk shall issue a license in violation of the time provision, or who shall knowingly grant a license without the required consent or without proper precaution in inquiring into the question of minority, or who shall issue a license for the marriage of a female to his knowledge domiciled in another county, shall forfeit the sum of $500 for every such act, to be recovered at the suit of the father or mother, if living, and if not, father or mother, the guardian or legal representative of either of such contracting parties: Provided, that under no circumstances shall more than one suit be maintained by the father or mother, guardian or legal representative of either of such contracting parties in connection with any one marriage: and Provided further that

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no such action shall be brought prior to the expiration of 60 days from the date that such marriage becomes public and no suit hereunder shall be maintained after the expiration of 12 months from date such marriage becomes public. A recovery shall be had against the offending ordinary and his bondsmen, and from such recovery a reasonable attorney's fee, to be fixed by the presiding judge trying the case, shall be paid to the attorney representing the person bringing the suit, and, after the payment of court costs, then one-third of the remainder of said recovery shall be paid to the person bringing the suit and the remaining two-thirds shall be paid to the county educational fund of the county of such ordinary's residence: Provided, that no recovery shall be had for any alleged violation involving marriages in which both parties are more than 19 years of age."
I might add that 53-107 provides that nothing contained in this section shall be construed to prevent reasonable restrictions from being imposed. Prohibitions dealing with reasonable ages or other prudential provisions looking only to the interest of the person to be benefited will not be considered to be in general restraint of marriage and will be held valid.
April 9, 1965
OPINION TO THE SECRETARY OF STATE
Thank you for your letter stating that on April 8, 1965, the Governor called a Special Election to be held on June 16, 1965, for the election of members of the House of Representatives of the General Assembly in accordance with reapportionment legislation adopted at the last session and as modified by Federal Court Order, and further stating that on the same day, April 8, 1965, the Democratic Party and the Republican Party each called a Special Primary to be held on May 5, 1965, for the purpose of nominating candidates for election to membership in the House of Representatives in such Special Election. You inquire as to the voter registration deadline applicable to such Special Primaries and Special Election, and as to the qualification deadline for candidates seeking party nomination in their respective party primaries to be held on May 5, 1965.
The voter registration deadline for such Special Primaries and such Special Election is fixed by the Georgia Election Code at the close of the registrars' business on Tuesday, April 13, 1965. Georgia Election Code 34-626. This same deadline also applies to the intercounty transfer of voter registrations [Georgia Election Code 34631 (b)] and to members of the military and others eligible for absentee registration [Georgia Election Code 34-619 and 34-1402 (c)].
The last day for candidates to qualify with their respective political parties for the purpose of speaking party nomination in one of the

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Special Primaries referred to above is on Monday, April 19, 1965. Georgia Election Code, 34-1006 and 34-105.
April 12, 1965
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you request that I confirm by opinion a memorandum of the Law Department dated June 4, 1964, regarding the question of deductibiliy under the Georgia law of contributions to a self-employed individual's retirement program where the program has been approved by the Internal Revenue Service and said contributions are deductible for Federal income tax purposes.
The following is a verbatim reproduction of the memorandum addressed to Mr. Fred L. Cox, Interstate Tax Director, which memorandum as reproduced I now confirm as an opinion of this office:
"So far as I am able to ascertain, the Georgia statutory law contains no provisions for deduction of contributions of an employer to an employee's trust or annuity plan whether or not the employee and employer are separate and distinct taxable entities or are the same taxable entity. However, reference to such a deduction is made in Section 92-3107(b) (2) (e) of the State of Georgia income tax regulations (p. 47), wherein employees' annuities are discussed.
"It appears that the State Revenue Department has been conforming, as an administrative practice, its treatment of payments to and benefits received from employee annuity contracts with the status of the same under the Federal law and regulations. If this is so, I see no reason for making any exception in administrative practice with respect to a self-employed individual's retirement program."
April 14, 1965
1964 GEORGIA HEALTH CODE
You ask the following specific questions regarding the new Health Code of 1964:
(1) If there has been a guardian ad litem appointed for the allegedly mentally ill person, does the Court of Ordinary have the duty to appoint an attorney to represent said person if said allegedly mentally ill person is financially unable to employ counsel, when the guardian ad item does not request such appointment?
(2) Does the new Health Code make it incumbent upon the Ordinary to ascertain whether or not the allegedly mentally ill person is financially able to employ counsel?

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(3) If it is determined that said allegedly mentally ill person is financially unable to employ counsel, is the appointment of an attorney to represent him mandatory?
It is felt that the above questions can be answered by reference to 88-506(d) of the Georgia Code Annotated (Georgia Laws 1964, p. 534, 535) which states:
"Provided, however, that in the event the allegedly mentally ill person shall be financially unable to employ counsel to represent said person in said hearing, then the ordinary shall appoint an attorney to represent said person. The attorney so appointed shall be compensated in the same manner and in the same amount as the members of the commission, but he shall not be a member of the commission." (Emphasis added)
It is therefore our unofficial opinion that the determination as to whether the allegedly mentally ill person shall be financially unable to employ counsel to represent said person in a committal hearing would have to be made by the Ordinary from evidence obtained from sources other than from the statement of the allegedly mentally ill person.
If the Ordinary, from the evidence obtained from other sources, determines that the allegedly mentally ill person is financially able to employ counsel to represent him in the committal hearing, then the Ordinary should not appoint an attorney to represent said person. If, however, the Ordinary, from evidence obtained, determines that the person is financially unable to employ counsel, then the Ordinary shall appoint an attorney to represent said person.
April 15, 1965
OPINION TO THE GOVERNOR OF GEORGIA
This is in reply to your letter wherein you request advice as to the constitutionality of Senate Bill 139.
While Senate Bill 139 would appear to be constitutional per se, the language in the proposed statute is rather broad and in my opinion would probably lead to unconstitutional applications of the bill in many circumstances.
Senate Bill 139 would amend Georgia Code Ann. 40-1812 [relating, inter alia, to the duty of the Department of Audits and Accounts to audit the books and accounts of county school superintendents and treasurers of local school systems] so as to permit local boards of education to have independent audits of any books and accounts over which the local boards have jurisdiction, with such audits to be paid for from public school funds.
In analysing the effect of this bill it would seem that a proper starting point would be the legal situation as it currently exists respecting the audit of the financial affairs of local boards of education.

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This present situation was rather thoroughly explored in an "unofficial" opinion of this office dated October 26, 1962 [See Ops. Att'y Gen. 155-57 (1962)]. In this unofficial opinion reference was made to the fact that the audits required of the Department of Audits and Accounts respecting public school funds in the hands of local school officials were regularly conducted and filed as matters of public record. (See Georgia Code Ann. 40-1805.) It was further pointed out that in view of the foregoing the State Auditor had consistently been of the opinion that local boards of education could not validly expend education funds for the purpose of obtaining a private audit of the local school fund. I concurred with this position of the State Auditor on the grounds that such an expenditure of public school funds for a second audit (by a private firm) would be both needless and, under the circumstances (e.g., no express authorization by the General Assembly), improper. It is important to note that this same opinion also considered the problem of the auditing of non-educational funds in the hands of local school officials (e.g., proceeds from athletic contests, theatrical productions, school newspapers, club fees and similar extra-curricular activities) .1 I concluded that while these funds could properly be audited by private auditing agencies where such audits were paid for out of such non-educational funds, it would be improper to use school funds to pay for the audits for reason that this would not be an expenditure "for educational purposes only". See Georgia Code Ann. 32-942; Burke v. Wheeler County, 54 Ga. App. 81 (4) (1936).
Looking then to the effect of Senate Bill 139, it becomes obvious that it would negate the above stated position of the State Auditor (in which I concurred) respecting the audit of books, accounts and public school funds in the hands of local school boards, and would clearly permit local school boards to have a second audit of the same by private auditing agencies and paid for from the public school fund. But while the wisdom of such authorization may be questioned (it would not be unreasonable to consider it to be an unnecessary expenditure of public money) it is axiomatic that the "wisdom" of legislation is not partieularly relevant to questions of constitutionality. inasmuch as I am unaware of any substantive provision of the Constitutional procedural requirements respecting its enactment, and inasmuch as I am unaware of any substantive provision of the constitution with which it is in conflict, I conclude that the bill on its face is constitutional.
On the other hand I do feel that it should be pointed out that the language of the bill, which refers to the use of public school funds for private audits over all:
1. Such extra-curricular activities are not financed through expenditures of public school funds and the funds derived from such activities (frequently in the hands of officials of the particular schools involved rather than the superintendent of the school system) have therefore not been covered by the audit of the State Department of Audits and Accounts.

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"books, records and accounts of the public school system over which any such board has jurisdiction"
would seem broad enough to lead a school board to conclude that it could now utilize public school funds to procure a private audit not only of educational funds, but also of all non-educational funds under the board's jurisdiction (i.e., the previously mentioned proceeds from extra-curricular activities). In my opinion the use of public school funds for a private audit of these non-educational funds would be an unconstitutional application of Senate Bill 139 under Article VII, Section IV, Par. I of the State Constitution [Georgia Code Ann. 2-5701], which restricts the purposes for which the power of taxation may be delegated to counties to various listed items, including "educational purposes." It is well settled under this constitutional provision that monies received from a tax levied for one of the specifically enumerated purposes cannot be expended for any other purpose. See e.g. Murphy v. Constitutional Indemnity Co., 172 Ga. 378 (1931) ; Ops. Att'y Gen. 168-70 (1960-61). Extra-curricular programs and activities (e.g. athletic contests, school newspapers, theatrical productions) and indeed all other functions and programs which are not such an integral part of the learning process as to be deemed an "educational purpose" (e.g. school lunch programs) can not constitutionally be financed by taxes levied for educational purposes and it follows that an expenditure of public school funds to audit the proceeds derived from such extra-curricular activities could likewise not be an expenditure for an "educational purpose." I therefore conclude that while Senate Bill 139 is not on its face unconstitutional, a school board relying upon the broad language of the bill to justify its expenditure of public school funds for a audit of those non-educational funds under the board's general jurisdiction would be likely to find that such application of the proposed statute would be violative of Article VII, Section IV, Par. I of the Georgia Constitution (Georgia Code Ann. 2-5701).
April 15, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter in which you request my opinion on the following question:
"In those situations where increased Homestead exemption is allowed for elderly persons [age 65 or older] under the conditions provided in the new constitutional amendment [ratified November 3, 1964], are taxes levied for school purposes andretirement of bonded indebtedness excepted as provided under the regular Homestead provisions in Article VII, Section I, Paragraph IV, of the 1945 Constitution of Georgia?"
The provisions of the 1964 amendment to Article VII, Section I,. Paragraph IV, of the Georgia Constitution (Georgia Code Ann. 2-5404) pertinent to your question are as follows:

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"Each person who is sixty-five (65) years of age or over and who does not have an income from all sources exceeding $3000.00 per annum is hereby granted an exemption of $4000.00 on his homestead which he owns and which he actually occupies as a residence, such exemption being from all State and county ad valorem taxes. The value of the residence in excess of the above exempted amount shall remain subject to taxation." (Emphasis supplied)
Corresponding provisions of Article VII, Section I, Paragraph IV, of the Georgia Constitution regarding the general $2000.00 homestead exemption, which, prior to the 1964 amendment, measured the homestead exemption entitlement of all Georgia taxpayers, except certain disabled veterans, regardless of age and income, are as follows:
"The Homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2000.00 of its value, is hereby exempted from all ad valorem taxation for State, county, and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and retire bonded indebtedness ... The value of all property in excess of the foregoing exemptions shall remain subject to taxation ... The exemption herein provided for shall not apply to taxes levied by municipalities." (Emphasis supplied)
The above and last quoted provision of the Constitution states that the $2000.00 general homestead exemption is from "all ad valorem taxation for State, county, and school purposes," and when the exceptions provided therein are applied to this general statement of exemption, the net result is an exemption from all ad valorem taxation for State and county purposes (including the tax for support and maintenance of county schools), except for the purpose of paying interest on and retiring bonded indebtedness.
A consideration of what is exempted from tax by an amendment to the Constitution (if there is question) must begin within the confines of the Constitution itself, whereinis conferred all authority to tax-the sovereign right of taxation reposing in the people [Article VII, Section I, Paragraph I, of the Georgia Constitution. (Georgia Code Ann. 2-5401)]. The question of what authority to tax has been taken away by amendment must be considered first in terms of what has been conferred. Article VII, Section IV, Paragraph I (Georgia Code Ann. 2-5701), authorizes the General Assembly "to delegate to any county the right to levy a tax" for a designated number of purposes, including the following which relate to public education:
"2. To pay the principal and interest of any debt of the county and to provide a sinking fund therefor.
"3. For educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution. (Article VIII makes provision for public edu-

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cation, including authority to counties to establish and maintain public schools.)
* * * *
"17. For school lunch purposes."
This constitutional authorization to the General Assembly to delegate the right to tax is clothed in two categorical identities: first, the corporate authority that may be authorized to levy the tax-the county-is identified; second, the purposes for which ad valorem taxes may be levied are set out. So that one may speak constitutionally of "county ad valorem taxes," which expression would include all ad valorem taxes levied by a county regardless of the purpose for which levied; or of "purposes" for which ad valorem taxes may be levied, thereby designating certain purposes exclusively of others; or of "ad valorem taxation for county and school purposes," which would mean the same as "county ad valorem taxes" [since school purposes are included within the designated purposes (see above) for which counties may levy taxes], except that the term "school purposes" crosses lines of taxing jurisdictions, as is evidenced by the exception from the $2000.00 homestead exemption of "taxes levied by municipalities for school purposes."
The Supreme Court of Georgia, citing Epping v. City of Columbus, 117 Ga. 263 (1903), has stated that
"In determining whether or not the exemption claimed has in fact been granted, the words in the constitutional exemption are to be given their ordinary meaning." Church of God of the Union Assembly, Inc. v. City of Dalton, 213 Ga. 76, 78 (1957).
Applying this rule to the expression "such exemption being from all State and county ad valorem taxes," as contained in the 1964 amendment, it seems reasonable to say that the exemption specifically describes the taxing authorities affected (the State and the county) and that the exemption is from all ad valorem taxes levied by the designated authorities. This conclusion gains further support by the fact that the General Assembly, in phrasing the resolution that became this amendment, had before it the language of the $2000.00 homestead exemption provision, which it was setting out to amend, and could have applied the exemption to "purposes" for which ad valorem taxes may constitutionally be levied instead of to "taxing authorities," as it did.
The mandate contained in Article VIII, Section XII, Paragraph I, of the Constitution (Georgia Code Ann. 2-7501) that
"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)"
is merely a limitation on the amount of tax authorized by Article VII, Section IV, Paragraph I, of the Constitution (Georgia Code Ann. 2-5701) for educational purposes, coupled with a direct constitutional duty to levy such tax. Other provisions of the Constitution granting

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authority to or charging governmental authorities of counties with responsibilities and duties-such as incurring and payment of debt (Article VII, Section VII) or the establishment and maintenance of a system of public schools (Article VIII, Section V)-even though the debt limitation of a school district, for example, is independent of that of the county as a whole, are not distinct and independent grants of authority to levy a tax, but, as specifically concerns counties and political subdivisions of counties, rely for financial support through taxation on authority authorized in Article VII, Section IV, Paragraph I (Code 2-5701). In Brown v. Martin, 162 Ga. 172, 177 (1926), the Court stated:
"The provisions for establishing and maintaining public schools and allowing taxation by counties for educational purposes are not distinct and independent constitutional provisions. They bear upon and have relation to the same subject."
The Supreme Court of this State has also repeatedly held that the authorized actions of a county board of education are the corporate actions of the county. Smith, et al., Commissioners v. Board of Education of Washington County, 153 Ga. 758 (1922) ; Sheffield v. State School Authority, 208 Ga. 575 (1952). In the Smith case, at page 759, the Court stated:
"In matters of education the county acts through its board of education. When the board of commissioners of roads and revenue acts upon matters lawfully within their jurisdiction, it is the county acting 'by corporate authority.' When the board of education acts upon matters lawfully within its jurisdiction, it is the county acting through 'its corporate authority.'"
The title to H. R. No. 406-917 that became the 1964 amendment under consideration (Georgia Laws 1964, p. 939) speaks of an "increased homestead exemption for certain persons." H. R. No. 406917 was consistently identified in similar manner in its journey through the House and Senate (Georgia House Journal, Regular Session, 1964; Georgia Senate Journal, Regular Session, 1964). Were the 1964 amendment amenable to such construction as to grant exemption from all ad valorem taxation for county purposes except for school purposes, it is most likely that in at least some Georgia counties the value of the $4000.00 exemption in terms of reduction of tax liability would be no greater, and possibly less, than that of the $2000.00 exemption were certain persons sixty-five (65) years of age and over able to claim under its provisions.
For the foregoing reasons it is my opinion that the 1964 amendment to the Constitution of the State of Georgia, granting a homestead exemption of $4000.00 to certain persons sixty-five (65) years of age and over, grants direct constitutional exemption from all State and county ad valorem taxes, including taxes levied for school purposes and for purposes of paying interest on and retiring bonded indebtedness, but grants no exemption from ad valorem taxes levied by municipalities.

737
April 15, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This will acknowledge your recent letter requesting an opinion as to whether the Department of Public Safety has the authority to disburse the security under the provisions of Georgia Code Ann. 92A-611 where there has not been a full compliance with the provisions of Georgia Code 92A-605 (a). Inasmuch as the security required in such a situation is primarily for the benefit and protection of the injured party, a release would abrogate any necessity for continued security. Accordingly, it is my opinion that the security deposit may be disbursed upon receipt of a general release executed by the injured party. It would appear that any other action would probably constitute a penalty rather than guarantee the beneficial intent of the Safety Responsibility Law.
While the restoration of the driver's license in such a case may probably depend upon full compliance with the provisions of the Safety Responsibility Law, disbursement of the security deposit is not so restricted.
April 19, 1965
PUBLIC SCHOOL TUITION
This is in reply to your letter concerning the right of a board of education to charge non-resident students tuition.
It is my unofficial opinion that a board of education may charge nonresident students tuition.
Although Article VIII, Section I, Par. I of the State Constitution [Georgia Code Ann. 2-6401] and Code 32-937 provide that admission to all common schools shall be gratuitous to all children residing in the districts in which the schools are located, it would seem settled beyond doubt that a school board may charge tuition for children who are nonresidents of the territory under the administration of such school board. As stated by the Supreme Court of Georgia in Edalgo v. Southern Railway Company, 129 Ga. 258, 266 (1907) :
"The Constitution declares that the public schools shall be free to all children of this State. When a system is provided where any child may be admitted free to a school in the territory where such child is domiciled, the mandate of the Constitution is satisfied. If a child desires to enter a school of any other territory, it is permissible to charge such child tuition for the privilege. The right of the school authorities to charge tuition for children who are nonresidents of the territory where the school is located has never been and can not be seriously doubted."

738
In determining the residence or domicile of a child the controlling statute is Georgia Code Ann. 79-404, which declares:
"The domicile of every minor shall be that of his father, if alive, unless such father shall have voluntarily relinquished his parental authority to some other person.... "
April 20, 1965
OPINION TO THE GOVERNOR OF GEORGIA
This will acknowledge receipt of your letter referring to the death of the Honorable William T. (Bill) Boyd who held the office of Solicitor General of the Superior Court of the Atlanta Judicial Circuit, and inquiring as to the length of time the person you appoint to fill this vacancy is entitled to hold office. You also inquire as to whether the successor to your appointee should be elected in the Special Election for Representatives to be held on June 16, 1965.
Article VI, Section XI, Paragraph I of the Georgia Constitution (Georgia Code Ann., 2-4601) provides in part that a solicitor general "shall be elected by the electors of the whole State" and that "Every vacancy occasioned by death, resignation, or other cause shall be filled by appointment of the Governor, until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected." Consequently, the successor to your appointee must be elected in a general election which is held in every county of the State. Compare: Copland v. Wohlwender, 197 Ga. 782 (1944), (reh. den.).
The term "general electi<:m" is commonly defined as meaning an election which recurs at stated intervals as fixed by law-one which occurs at stated intervals without any superinducing cause other than the efflux of time.1 A special election, on the other hand, is one that arises from some exigency or special need outside the usual routine.
These definitions clearly demonstrate that the Special Election for Representatives to be held on June 16, 1965, is not a "general election" within the meaning of the above quoted constitutional provision. 2 Furthermore, the Special Election for Representatives will
1. Compare: 18 AM JUR Elections 5 (1938) 29 C.J.S. Elections 1 (2) (1955); Ga. Election Code. 34-103 (h); and Stephens v. Reid, 189 Ga. 372, 373, 382 (1939).
2. See: H. B. No. 580, Act. No. 296, approved March 30, 1965, providing for the call and the holding of the Special Election for Representatives.

739
not be held in forty-seven counties of the State and hence it will not be one participated in by the "electors of the whole State."3
In view of these authorities and on the basis of the laws of Georgia as they presently exist, it is my opinion that the person you appoint to fill the above mentioned vacancy in the office of Solicitor General should serve "until first day of January" in the year 1967, and that his successor should be elected in the General Election to be held on November 8, 1966.
April 20, 1965
OPINION TO THE BOARD OF ACCOUNTANCY
I have your letter wherein you request my opinion on the following question:
"If a firm of accountants represent a corporation, does the relationship of accountant and client extend beyond the corporation to the directors and stockholders of such corporation?"
In Webster's International Dictionary, Second Edition, the word "client" is defined in part as follows:
"3 Law - One who consults a legal adviser in order to obtain his professional advice or assistance, or submits his cause to his management.
"4 Hence a - One who employs the services of any professional or business man as a customer."
Ballentine's Law Dictionary, Second Edition, refers to a client as follows:
"A person who applies to a lawyer or counseller for advice and direction on a question of law, or commits his cause to his management in presenting a claim or defending against a suit, in a court of justice....
A patron or employer of an attorney or solicitor; a person who applies to an advocate for counsel and defense; one who retains an attorney, who is responsible to him for his fees, and to whom the attorney is responsible for his management of the suit. . . "
In the case of 'foulmin v. Becker, Ohio App., 124 N.E. 2d 778
3. See: The Order, dated April 1, 1965, of the United States District Court for the Northern District of Georgia, Atlanta Division, in the case of Henry J. Toombs, et al. v. Ben W. Fortson, Jr., as Secretary of State of the State of Georgia, et al. (Civil Action No. 7883). See also; My opinion to the Honorable George D. Stewart, as Secretary of the State Democratic Executive Committee, dated April 16, 1965, specifying those forty-seven counties which are not involved in the Special Election for Representatives.

740
(1954), a client is defined as "one who needs professional help and who ultimately pays for the same."
In a number of cases defining the word client the courts refer to the client being the one who pays for the services. It would be a most strained and tortured construction to hold that directors and stockholders of a corporation pay for the services of an accountant. Directors, and particularly stockholders of a corporation change frequently and if a relationship of accountant and client by any possible construction could extend to directors and stockholders of a corporation, the accountant would never at any given time know exactly who he client or clients were.
It is my opinion that the relationship of accountant and client, where the client is a corporation, exists solely by and between the corporation and the accountant, and that the relationship would not extend beyond the corporation so as to include directors and stockholders thereof.
April 20, 1965
OPINION TO THE UNIVERSITY SYSTEM OF GEORGIA
This is in response to your request for an opinion concerning the status of Higher Education Facilities Commission grants. It is my belief that such grants would, for the purposes of the Board of Regents, in meeting the requirements of monies on hand for the letting of contracts, be equivalent to, and would be considered as money.
There are certain restrictions. First, the application for the grant must have been complete. The offer of grant by the Commissioner must be accepted within the time specified and completely on its terms. After acceptance, there must be complete adherence to the terms of the grant, for any deviation could result in withholding of funds for certain periods until the project was in compliance.
Assuming complete compliance by the Board of Regents with the terms and conditions of the grant offer, then it becomes an enforceable obligation against the Commissioner, it becomes an obligation of the United States, and is one which is payable. This is enforceable and reducible to monetary standards. While it would not be "cash" in the strictest sense, as understood by citizens on the street, it remains nonetheless an enforceable obligation of the United States, payable on demand upon compliance, in monies, and would appear at least equal to, if it did not suppress, Treasury Notes or other similar obligations of the United States. Federal Reserve Notes themselves are simply obligations of the local Federal Reserve Bank. United States notes are notes of the United States Treasury. The silver certificate is being rapidly phased out, but was the only existing currency readily reducible to silver as a monetary standard.
This being so, it is my opinion that these grants, when accepted by the Board of Regents as Applicant, become legally enforceable obliga-

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tions ; and so long as there is compliance, may be considered as monies for purposes of the Regents in contracting for construction.
April 21, 1965
OPINION TO THE BOARD OF CORRECTIONS
Pursuant to your recent letter, I have reviewed House Resolution No. 51-99 to determine whether the State Board of Corrections is authorized to make payment pursuant to its terms.
The facts set forth in the Resolution indicate negligence on the part of your employee for which the passenger, though he be a prisoner, could recover damages in a court of law in the absence of state immunity. It is this type situation in which the State Claims Advisory Board is empowered to act and, in fact, has acted.
In addition, the Resolution apparently follows the procedure set forth in Georgia Code Ann. 47-504 through 47-509.
Therefore, it is my opinion, tliat the Resolution is sufficient in form and substance and should be paid by your Department as directed.
April 21, 1965
OPINION TO THE BOARD OF HEALTH
I wish to acknowledge receipt of your letter in which you ask my opinion as to the proper procedure for securing stationery, stamps, office supplies, secretarial help, or any other services which may be necessary for the Secretary of the State Board of Health to carry out his duties.
You state that the Secretary has incurred considerable personal expense in carrying out his duties and ask our assistance in this matter. I assume that you are asking of my opinion as to whether the Secretary, Honorable J. Frank Myers, may be reimbursed for such personal expenses.
Under the provisions of 88-107 of the 1964 Health Code (Georgia Laws 1964, p. 499, 505), there is a specific prohibition against the Chairman or Secretary of the State Board of Health receiving any extra compensation over and above the legal per diem expenses paid to all Board members. This Code Section reads as follows:
"88-107. The board; its government.-The Board of Health is authorized and empowered to ordain and enforce bylaws for its own government, including provisions for a chairman and secretary who, however, shall serve without extra compensation, for sessions not less frequent than quarterly, and for re-

742
moval from membership on the board of any who absent themselves from its regular sessions without just cause."
I have taken the liberty of contacting Dr. John H. Venable, Director of the Georgia Department of Public Health, in order to ascertain prior Board policies with regard to furnishing stationery, stamps and other office supplies to members of the State Board of Health. Dr. Venable informs me that for the past several years the Department has furnished members of the State Board of Health with stationery and other office supplies, and recently has furnished telephone credit cards to the officers of the Board and stamps to the Secretary; and that the Department is willing to continue such policy matters.
As to your reference to the employment of secretarial help to assist the Secretary of the Board, I know of no legal objections to such employment under Merit System regulations other than budgetary limitations. The pertinent statute controlling this matter is Georgia Code Ann. 88-113 (Georgia Laws 1964, p. 449, 509), which provides as follows :
"88-113. Staff, how appointed.-Subject to budgetary limitations, the Board of Health is authorized to employ a deputy to the Director and such other staff as may be needed to perform the functions of the department. The Board of Health may delegate to the Director the power to employ such deputy and such other staff. All employees, except the Director, shall be subject to the rules and regulations of the State Personnel Board."
Therefore, it is my opinion that subject to the approval of the Budget Director of the State of Georgia, the State Board of Health would be authorized to employ a secretary to assist members of the State Board of Health under the rules and regulations promulgated by the State Merit System.
April 22, 1965
OPINION TO THE DEPARTMENT OF FAMILY AND CHILDREN SERVICES
This is in reply to your letter wherein you ask for an opinion as to whether or not the "Office of Economic Opportunity," which you established as a Unit within the Department of Family and Children Services by your Executive Order dated 25 January 1965, is an entity which is legally capable of receiving and spending funds received from the Federal Government under the Economic Opportunity Act of 1964.
It is my opinion that under the laws of Georgia, the "Office of Economic Opportunity" of the Department of Family and Children Services may legally receive and disburse funds made available by the Federal Government under the Economic Opportunity Act of 1964.

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There would seem to be no doubt as to the fact that the programs envisaged by the "Economic Opportunity Act of 1964" [Public Law 88-452, 78 Stat. 508] are programs which on the state level fall within the general jurisdiction of the State Department of Family and Children Services. Georgia Code Ann. 99-128 not only authorizes, but indeed directs the State Department to:
"administer such programs and provide such services as may be necessary to strengthen family life and help needy individuals attain the maximum economic and personal independence of which they are capable ...." (Emphasis added)
It is similarly quite clear that as Director of the State Department of Family and Children Services, you are vested with the responsibility for the administration, control and supervision of the Department [see Georgia Code Ann. 99-103], and fully authorized (1) to create such divisions therein as may be necessary for effective administration, and (2) to allocate and reallocate functions among such divisions. See Georgia Code Ann. 99-129. In my opinion the Executive Order which you promulgated on January 25, 1965 was well within the authority vested in you by the General Assembly under this last-mentioned code section and it follows that I am also of the opinion that the "Office of Economic Opportunity", which your Executive Order created as a division of the State Department of Family and Children Services, for purposes and functions which expressly include those programs contemplated by the Economic Opportunities Act of 1964, is an entity legally authorized under the laws of Georgia to receive and disburse federal funds made available to this State under said Act.
April 22, 1965
OPINION TO THE BOARD OF CORRECTIONS
This will acknowledge receipt of your recent letter in which you inquire whether the Department of Corrections is authorized or required to expend funds to defray the costs and expenses incident to criminal trials involving prison inmates at Georgia State Prison in Tattnall Superior Court. You direct particular inquiries to the payment of court appointed attorneys' fees and court reporters' costs.
Georgia Laws 1964, p. 462, provides as follows:
"Section 1. The whole costs of the case and expenses of the trial involving an inmate of the State Prison System charged with the violation of any criminal statute shall be borne by the State Board of Corrections; ...." (Emphasis added)
Under normal circumstances all costs and expenses of trial are borne by the county. The above stated statute was clearly intended to relieve Tattnall County of the payment of any cost or expenses in connection with criminal trials of inmates in Georgia State Prison.

744
In reference to your individual queries concerning payment for court appointed counsel and court reporters in these cases, I refer you to Chapter 27-30 of the Georgia Code Ann. which provides in 27-3001 that payment for the services of the court appointed attorney is made from the "county treasury" upon order of the court, said fees to be not less than $50 nor more than $150 plus necessary expenses incurred by the attorney not to exceed $500. It is my opinion that the compensation of the appointed attorney in these cases is to be borne by your Department rather than the county under authority of Georgia Laws 1964, p. 462 as set forth hereinbefore.
The payment of court reporters is normally an expense of the county under Georgia Laws 1959, pp. 61, 62 (Georgia Code Ann. 24-3104) which provides that "[t] he compensation of the reporter . . . of such criminal cases as are required by law to be recorded shall be $25 per day, which sum shall be paid by the county treasurer ..." and, as such, should be paid by your Department as a part of the expense of trial under Georgia Laws 1964, p. 462.
In conclusion, it is my opinion that the Department of Corrections is obligated to pay all costs and expenses listed on the statement submitted to your office, including court appointed attorneys' fees and the per diem of the court reporter.
April 23, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
You request my opinion on whether the State of Georgia is legally liable for assessments levied against it as an owner of property abutting street improvements.
The Supreme Court of Georgia considered the question in connection with county liability in City of LaGrange v. Troup County, 132 Ga. 384 (1909) and held at 385:
"We think the better view is that where general power is given a municipality to levy local assessments upon the property benefited by street improvements, and there is no provision clearly showing that public property shall be subject to such assessment, there is an implied exception in favor of its exemption. The municpality can not assess abutting public property unless the power to levy such assessment is clearly given."
In reviewing the power given to the City of Atlanta by the General Assembly, I can find only a general power of assessment similar to that given to the City of LaGrange in the above cited case. In short, there appears to be no specific authorization to assess state property and under City of LaGrange v. Troup County, supra, state property is exempt.

745
In conclusion, it is my opmwn that the State's property is not subject to assessment for street improvements in the absence of the State's assent or a petition by the State for such improvements under Georgia Code Ann. 92-4202.
April 23, 1965
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter requesting a legal opm10n as to the applicability of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Georgia Laws 1951, p. 360), as amended, to (1) the sale of water by the Jekyll Island- State Park Authority; (2) charges made by the Authority for admission to swimming pools and golf courses operated by it; and (3) rental charges for the use of rooms in the hotel operated by it.
With respect to the first item, reference is made to an opinion of the Attorney General dated October 24, 1963. That opinion held that the Authority is responsible for collecting and remitting to the State Revenue Commissioner sales taxes on water sales made by the Authority.
The same conclusion is called for with respect to the second and third items. Section 3(c)l of the Act, which, inter alia, specifies certain transactions which the legislature intended to be treated as sales of tangible personal property, provides, in part:
"... For the purpose of the tax imposed by this Act these terms ['retail sale' or a 'sale at retail'] shall include but shall not be limited to the following:
(b) . . . charges for any room or rooms . . . furnished to transients by any hotel . . . The tax shall not apply, however, to rooms . . . supplied for a period of 90 continuous days or more.
" (c) . . . charges made for admission to . . . places of amusement, sports, or entertainment . . . or places where an admission fee is charged...."
While, strictly speaking, transactions involving charges made for admission to swimming pools or golf courses or for the use of rooms in a hotel do not amount to sales of tangible personal property, this section seems to make it clear that they are, for sales tax purposes, to be treated as the equivalent of such sales, the person making the charges occupying the role of a seller and the ones paying them occupying the role of purchasers Thus, under these circumstances, the Authority is a seller and the persons admitted to the swimming pools and golf courses and furnished rooms in the hotel are purchasers within contemplation of the Act.
As a result of a 1960 amendment (Georgia Laws 1960, p. 153), 2 of the Act requires the purchaser to pay to the seller a tax at

746
the rate of 3 per cent of the purchase price on each retail purchase of tangible personal property and the seller, in turn, to remit the tax to the State Revenue Commissioner. Similarly, 2 requires the seller to pay a tax to the Commissioner at the rate of 3 per cent of the sales price on each retail sale of such property. For collecting the tax owed by the purchaser and remitting it to the Commissioner, the seller receives a credit against his liability for the amount collected and remitted. Since the liability of each with respect to a given transaction is the same, one offsets the other. This means the seller has no liability when he properly collects and remits.
While the seller is a taxpayer in a technical sense, it can be seen from this that the purchaser is the taxpayer in the real sense. This is further demonstrated by the fact that before the 1960 amendment, the Act, according to the Georgia Supreme Court in Oxford v. J. D. Jewell, Inc., 215 Ga. 616 (1959), only imposed a tax on the seller. It did, however, allow him to reimburse himself by collecting an amount equal to the tax from the purchaser. Because of the Jewell decision, the legislature adopted the 1960 amendment, which had as one of the purposes expressed in its title
"to clarify the Act so as to make it clear that the legal imposition of the tax is upon the purchaser and thereby express the original intent of the General Assembly."
Based on the view that the purchaser is the real taxpayer and that the seller is made a taxpayer in a technical sense in order to strengthen the means of enforcing the Act, the limited tax exemption granted the Authority by an Act approved February 10, 1960 (Georgia Laws 1960, p. 89), has no application when the Authority occupies the role of a seller. It does, of course, have application when it is a purchaser, as pointed out in an opinion of the Attorney General dated October 24, 1963, dealing with purchases by the Authority.
To sum up, the Authority is under a duty to collect and remit to the State Revenue Commissioner sales taxes on the sale of water and on charges made for admission to swimming pools and golf courses and for the use of rooms in the hotel.
April 23, 1965
PROTECTIVE SERVICE SUITS
This is in reply to your letter concerning possible liability of a school official who permits a child to bring a protective service complaint against his own parent or guardian. You wish to know whether the school official might be liable if on the basis of his information and belief (which I shall assume to be based on some reasonable ground) he requests the county department of family and childrens services to investigate the matter and allow the department's interview of the child to be held either at the school or at the county department's offices.

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I am unaware of any legal theory under which a school official might be held liable in a legal action founded upon his good faith reference of a child neglect, abuse or abandonment situation to a county department of family and children services for investigation, or, upon his assistance in such investigation by permitting the child to be interviewed at the school or in the offices of the county department during school hours.
There would seem to be no question as to the general obligation of the Division for Children and Youth, both through its own programs and the programs of its county departments, to investigate complaints of neglect, abuse, or abandonment of children and youth by their parents, guardians or other persons serving in loco parentis, See Georgia Code Ann. 99-211 (b) (2). Thus the only question would appear to be the right of a school official to contact the county department regarding such matters where their pupils are concerned and to assist in the investigation by allowing the child to be interviewed during school hours either at the school or by taking the child to the county department.
In my opinion such legal right clearly exists in public school officials. In the first place, the express authority of the county departments to investigate "complaints" manifestly implies both the right of the departments to receive complaints and the right of some third party (which probably would include any individual, whether a school official or not) to make a complaint.By analogy it may be noted that the Juvenile Court Act expressly authorizes:
"Any person having knowledge or information that a child is ... [neglected, delinquent etc.] ... may file with the juvenile court a complaint stating the facts that bring such child within said provision...."(Georgia Code Ann. 24-2411 (Emphasis added))
The right of an individual to make a complaint to a county department would seem to be even further strengthened where such individual is a school official because of the well settled law that such officials are in loco parentis to their pupils during the time the pupils are under their care and supervision. E.g., Board of Education v. Purse, 101 Ga. 423, 435 (1897). As a result of this parent-child nature of the relationship between school officials and the children under their care, such officials would seem to have a moral if not legal duty to protect the general well being of the children placed in their care and for this reason it is in my opinion quite unthinkable that a court would conclude that such officials lack the right to take such a reasonable action as notifying and cooperating with county departments of family and childrens services in suspected cases of child abuse etc. [It is assumed, of course, that the action of the school official is one which is taken in good faith and based upon some reasonable grounds.]

748
April 27, 1965
ORDINARIES
We are in receipt of your letter inquiring as to the jurisdiction of Courts of Ordinary in traffic cases involving violation of State laws outside the limits of municipalities.
While Georgia Code Ann. 92A-511 does in fact, purport to vest "exclusive" jurisdiction of all such cases in the Court of Ordinary, the word "exclusive" is intended simply to exclude concurrent jurisdiction in other inferior courts, such as justice's courts, and does not divest the Superior Courts of their basic concurrent jurisdiction in all such cases. See Smith v. State, 62 Ga. App. 733 (1940).
Accordingly, the sheriff might take such cases before the Superior Court rather than the Court of Ordinary if he elects and if the Superior Court elects to exercise jurisdiction over them.
Costs to which the Ordinary is entitled in traffic cases are set forth in 92A-505. They are:
Warrant, if issued --------------------------------------------------------------------$1.25 Entering case on docket, receiving pleas or holding trial and imposing sentence, for entire services________________________ $3.00
Costs for the sheriff are the same as those provided for similar services before the Superior Courts.
April 28, 1965
OPINION TO THE DEPARTMENT OF INDUSTRY AND TRADE
This letter is written in response to your inquiry concerning the legality of water uses from the Flint River in Macon County, Georgia.
The Flint River is generally considered to be a navigable stream, although there has been no declaration of this fact by a court. In Georgia Code Ann. 85-1303 a "navigable stream" is defined as follows:
"A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in regular course of trade. The mere rafting of timber or transporting of wood in small boats shall not make a stream navigable."
Litigation has arisen over the navigability of various streams, but the courts have never, so far as I can determine, declared the Flint to be such.
The rights of ownership in land adjoining navigable streams extend only to the low water point in the stream bed. Georgia Code

749
Ann. 85-1304. The ownership of the bed of a navigable river is vested in the State of Georgia. The ownership was confirmed by an Act of Congress in 1953. 43 U.S.C. 1311. It must be remembered, however, that Congress has some control over navigable rivers by virtue of its power to regulate interstate commerce. 65 C. J. S. Navigable Waters 108. For this reason, the United States Corps of Engineers should be consulted to determine if they consider the Flint River to be navigable and, if so, a license might be obtained from them if any pipes, pumps, etc., will be injected into the Flint.
Although the state owns the land under navigable streams, owners of adjacent property are considered to possess certain riparian rights not possessed by the general public. These rights stem from common law. Baltimore, v. Crown Cork & Seal Co., 122 F.2d 385 (4th Cir. 1941). There is little Georgia law concerning these rights, and therefore general law must be referred to. A riparian owner has a right to the reasonable use of the water, so long as the lower riparian owners are not affected. 65 C. J. S. Navigable Waters 65. And, the adjacent owner has a fundamental right of access to the water. State v. Knowles-Lombard Co., 188 A. 275; 107 A.L.R. 1344 (1936).
From the above cited authority it seems clear that an adjoining landowner on the Flint River has a right to pump water from it for industrial or other use, so long as navigation and the rights of lower riparian owners are not affected. Of course, many uses of the water would also be regulated by the Water Quality Control Act, Georgia Laws 1964, p. 416, which deals with water pollution.
April 28, 1965
OPINION TO THE DEPARTMENT OF REVENUE
This is in reply to your letter in which you request my opinion on several questions and factual situations concerning the 1964 amendment to the Georgia Constitution which provides an increased homestead exemption for certain persons sixty-five (65) years of age or older.
Set out below is the amendment to which you refer, and your questions follow in the same numerical sequence as in your letter.
"Each person who is sixty-five (65) years of age or over and who does not have an income from all sources exceeding $3,000.00 per annum is hereby granted an exemption of $4,000.00 on his homestead which he owns and which he actually occupies as a residence, such exemption being from all State and county ad valorem taxes. The value of the residence in excess of the above exempted amount shall remain subject to taxation. Any such owner shall not receive the benefits of such homestead exemption unless he files an affidavit with the tax commissioner or tax receiver of the county in which he resides, giving his age and the amount of income which he

750
receives and such additional information relative to receiving the benefits of such exemption as will enable the tax commissioner or tax receiver to make a determination as to whether such owner is entitled to such exemption. The tax commissioner or tax receiver shall provide affidavit forms for this purpose. The increased exemption provided for herein shall apply to all taxable years beginning after December 1, 1964." (Georgia Laws 1964, p. 939)
"1. Inasmuch as the 1964 amendment does not define 'homestead,' do the statutory definitions of 'homestead' and other statutory requirements for entitlement to 'homestead exemption' (Georgia Code Ann. 92-219.1 through 92-230, and 92-232 through 92-235) apply the same to the increased $4,000.00 exemption as they do to the regular $2,000.00 exemption?"
Since the Legislature that framed the Resolution (H.R. No. 406-917, Ga. Laws 1964, p. 939) that became the 1964 amendment to the Constitution (ratified November 3, 1964) did not provide therein a definition of "homestead" or other requirements for entitlement to "homestead exemption,'' as has been done by legislative act under constitutional authority [Article VII, Section I, Paragraph IV, of the Georgia Constitution (Georgia Code Ann. 2-5404)] for the regular $2,000.00 homestead exemption, and since the title to the Resolution, in stating that the amendment is "to provide for increased homestead exemption for certain persons,'' indicates that the "homestead" spoken of is the same as that already described in the law, it is my opinion that, as respects the ad valorem tax, the Georgia Constitution refers to one "homestead" only and that the sections of the Georgia Code Annotated referred to in your question apply the same to the "homestead" of the $4,000.00 exemption as they do to the "homestead" of the $2,000.00 exemption in so far as the wording of the 1964 amendment permits.
For example, the 1964 amendment requires that an affidavit be filed
"with the tax commissioner or tax receiver of the county in which he [the taxpayer] resides, giving his age and the amount of income which he receives and such additional information relative to receiving the benefit of such exemption as will enable the tax commissioner or tax receiver to make a determination as to whether such owner is entitled to such exemption."
This requirement, with respect to the increased "homestead exemption" of $4,000.00, is in addition to the other requirements as set out in the law for filing for the regular "homestead exemption" of $2,000.00, and since the statement of "income per annum,'' as required to be made in the affidavit, would be conjectural and not such factual information as to be proper subject matter of the required affidavit unless and until the income is realized or received, it is my opinion that the affidavit required by the 1964 amendment must be filed in accordance with the provisions of 92-220 of the Georgia Code Ann., except that it must be filed annually "on or be-

751

fore April 1" of each year for which the increased homestead exemption is claimed, and that the provision of 92-220 that

"such exemption shall automatically be renewed from year to year so long as such owner continuously occupies such residence as a homestead"

applies to such application for "homestead exemption" as would entitle the owner to the basic exemption of $2,000.00, but not to the affidavit as to age and income, such affidavit being the additional requirement, specified in the 1964 amendment, for entitlement to the increased exemption of $4,000.00.

(Note:

In this respect, Georgia Code Ann. 92-222 requires the State Revenue Commissioner to furnish application forms to county and municipal authorities not later than February 1
of each year. I have been informed by the State Revenue Department that the required form of affidavit for claiming
the increased "homestead exemption" of $4,000.00 was fur-
nished the tax receivers in December, 1964, and that this form will supplement the regular application form for the basic "homestead exemption.")

"2. Does the increased $4,000.00 homestead exemption apply to the millage levied (a) for school purposes and (b) to pay interest on and retire bonded indebtedness?"

It is my opinion that the 1964 amendment to the Constitution of the State of Georgia, granting a homestead exemption of $4,000.00 to certain persons sixty-five (65) years of age and over, grants direct constitutional exemption from all State and county ad valorem taxes, including taxes levied for school purposes and for purposes of paying interest on and retiring bonded indebtedness, but grants no exemption from ad valorem taxes levied by municipalities. See Opinion to the Department of Education, April 15, 1965, Ops. Att'y Gen. (1965).

"3. Does the increased $4,000.00 homestead exemption apply to ad valorem taxes levied by municipalities?"

This question is answered in my reply to question "2," above.

"4. Does the term 'income from all sources' as contained in the
1964 amendment include benefits received under the Social Security Act, benefits received under the Railroad Retirement Act, a U. S. veteran's pension?"

Webster's Ne'w International Dictionary, Second Edition, defines income as

"That gain or recurrent benefit (unusually measured in money) which proceeds from labor, business, or property; commercial revenue or receipts of any kind."
Black's Law Dictionary, Third Edition, defines "income" as

"The return in money from one's business, labor, or capital invested; gains, profit, or private revenue."

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Both of the foregoing definitions speak commonly of "income" as the gain, profit, or benefit which proceeds from labor, business, or property. Noticeably absent from both definitions is any intimation that gifts are to be included in the term "income."
That something more than "taxable net income" was intended by the framers of the Resolution that became the 1964 amendment is indicated by the insertion of the words "from all sources" in the term "income from all sources." Further evidence that the "income" intended to measure entitlement to the increased $4,000.00 homestead exemption is to include income exempt from the income tax is the fact that a Senate amendment to H.R. 406 (the Resolution that became the 1964 amendment) that added the words "exclusive of any social security benefits" after the words "per annum" failed to pass the House and was struck out by the Senate (Georgia Senate Journal, Regular Session, 1964, pp. 1086, 1087, 1228; Georgia House Journal, Regular Session, 1964, pp. 2166, 2322). The Legislature, in voting down the Senate amendment, expressed its intent that benefits received under the Social Security Act are to be included in claimant's income in determining entitlement to the increased "homestead exemption" of $4,000.00.
The Supreme Court of Georgia has stated the rule that "the words in the constitutional exemption are to be given their ordinary meaning" in determining whether or not an exemption from tax has in fact been granted. Epping v. City of Columbus, 117 Ga. 263 (1903); Church of God of the Union Assembly, Inc. v. City of Dalton, 213 Ga. 76 (1957). Applying this rule in conjunction with the foregoing considerations, it is my opinion that the expression "income from all sources" does not include gifts or the return of capital, but that it does include all gain, profit, or benefits resulting from claimant's labor, business, or property (ordinarily this will be taxable income, as required to be reported under the provisions of the income tax law, plus income exempt from tax). Further, applying this general, ordinary concept of what is "income" to the specific items listed in your question, it is my opinion that
a. Benefits received from the Social Security Act and benefits received under the Railroad Retirement Act are "income" for purposes of the 1964 amendment.
b. U. S. veterans' pensions are "income" for purposes of the 1964 amendment. The Legislature, by resolution (H.R. No. 66-173b, Georgia Laws 1957, p. 72; H.R. No. 400-895, Georgia Laws 1964, p. 1027), and the people of Georgia, by ratification, have twice expressed themselves as to an exemption of $10,000.00 on the homestead of certain disabled veterans by amending Article VII, Section I, Paragraph IV, of the Georgia Constitution (Georgia Code Ann. 2-5404). If veterans were to be given further special "homestead exemption" consideration, the opportunity was before the Legislature to so state in phrasing the 1964 increased "homestead exemption" amendment.
"5. Does the term 'who does not have an income from all sources exceeding $3,000.00 per annum' as contained in the 1964 amendment,

753
mean that the income which will measure entitlement for the exemption is the income received during the year for which the taxes are assessed?"
Returns for State and county ad valorem taxes are made for property held and subject to taxation on January 1 of the year for which the taxes are assessed and the lien for such taxes attaches as of that date (Georgia Code Ann. 92-6201, 92-6202, 92-5708; Trust Company of Georgia v. Kenny, 188 Ga. 243, 245 (1939). The required affidavit as to age and income per annum of applicant for the increased "homestead exemption" of $4,000.00 must be filed on or before April 1 (Georgia Code Ann. 92-220, and see reply to question "1," above), fifteen days before the last day for filing income tax returns. Under both the Federal and the State income tax laws, calendar year basis taxpayers have until April 15 of the succeeding year to file their returns, and notice might be taken that the average taxpayer ordinarily does not know what his annual income is until after January 1 of the year following the year in which it was received. County tax digests are required to be completed and presented to the State Revenue Commissioner for approval by August 1 in each year (Georgia Code Ann. 92-5401).
In view of the above and for the same reasons, as given in the answer to question "1," for the opinion that the required affidavit of applicants for the increased "homestead exemption" of $4,000.00 must be filed on or before April 1, it is my opinion that the "income per annum" required to be stated in such affidavit is the amount of income received during the preceding calendar year.
"6. If a person is sixty-five years of age or over and has less than $3,000.00 income from all sources, but does not file for the increased $4,000.00 exemption, is he eligible for the regular $2,000.00 homestead exemption?"
The 1964 amendment provides an increased "homestead exemption" of $4,000.00 to residents of Georgia meeting certain requirements in addition to the requirements for entitlement to the basic "homestead exemption" of $2,000.00. One eligible for the increased exemption, but failing to file the additional affidavit, would be entitled to the "homestead exemption" of $2,000.00 if he has filed an application in accordance with the provisions of Georgia Code Ann. 92-220.
"7. Two sisters, one sixty-six (66) years of age and the other seventy-eight (78) years of age, are joint owners of a duplex apartment wherein they reside, each occupying a separate and distinct apartment unit, and each having an annual income of less than $3,000.00- Is each sister entitled to a homestead exemption of $4,000.00 ?"
According to the facts as stated, this is one building, owned and occupied jointly by the two sisters, either of whom could meet the requirements of the 1964 amendment for entitlement to the increased "homestead exemption" of $4,000.00, provided all the requirements for entitlement to the basic "homestead exemption" of $2,000.00 can

754
be met. However, subsection (j) of Georgia Code Ann. 92-233 would limit the "homestead exemption"under such conditions to one exemption of $4,000.00, claimed in the names of such joint owners and occupants:
"(j) Where the property is owned and occupied jointly by two or more persons all of whom occupy the property as a home and if otherwise entitled to a homestead such homestead may be claimed in the names of such joint owners residing in said home."
Subsection (1) of the same Code Section provides that more than one "homestead" may be claimed out of one building under certain conditions when units of the building are separately owned and occupied. In the example, as given, even though the units of the duplex are separately occupied, they are not separately owned as required by the Statute:
"(1) [of Code 92-233] ... not more than one exemption may be claimed in connection with the occupancy of one building except in the case of duplex or double occupancy dwellings when the line of division follows a natural and bona fide plan as to both land and building and the two units thus formed are separately owned and occupied."
"8. Does the increased 'homestead exemption' of $4,000.00 provided by the 1964 amendment apply for the year 1965 ?"
The 1964 amendment itself specifies that
"The increased exemption provided for herein shall apply to all taxable years beginning after December 1, 1964."
April 28, 1965
VOLUNTEER FIREMEN
This is in reply to your letter inquiring as to the legal status in regard to an employer-employee relationship between the volunteer firemen in the performance of their duties and the Town of Thunderbolt.
You have stated that the firemen receive no pay at all except for one retired person who lives at the station and oversees it for the rent value of his quarters.
An official opinion of the Attorney General dated March 8, 1955, to the Director of the Georgia Forestry Commission concluded that volunteer fire-fighters are not entitled to Workmen's Compensation. Several court decisions are cited in that opinion which hold that payment of wages is necessary to bring one within the workmen's compensation act. I am enclosing a copy of this opinion for your reference.

755
With reference to the employee who lives at the fire station and oversees it for the rent value of his quarters, I am of the opinion that the definition of "employer" and "employee" in 114-101 of the Georgia Code Annotated is broad enough to include this person, since he is in the service of the city under at least an implied contract in return for which he receives as wages, the quarters furnished to him rent free by the city. Pursuant to 114-109 of the Code, "neither municipal corporations and political subdivisions of the State nor any employee of any such corporation or subdivision, shall have the right to reject the provisions of this Title relative to payment and acceptance of compensation; . . ." this employee would be automatically covered under the Act. See City Council of Augusta v. Young, 218 Ga. 346 (1962).
You should, therefore, see that your Workmen's Compensation policy covers this employee, by adding his name to the payroll and showing the monetary value of the quarters furnished to him.
With respect to the liability of the town to the volunteer firemen, it is my opinion that since the operation of the fire department is a governmental function, no liability attaches to the city for any injuries which may be received by the volunteer firemen while performing their volunteer duties. See Miller v. City of Macon, 152 Ga. 648 (1921); Georgia Code Ann. 69-301; Watkins v. City of Toccoa, 55 Ga. App. 8 (1936).
April 30, 1965
DEEDS
This is in reply to your letter wherein you request my opinion as to whether the State of Georgia may accept a deed of real property where the deed contains a reversionary clause.
Georgia Code Ann. 91-117 provides in pertinent part:
"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 ... may be improved with funds appropriated for a State department...."
It is my opinion that the rule of statutory construction "inclusio unis est exclusio alterius"1 necessarily leads to the conclusion that where the grantor is any entity other than the Federal Government it would be improper to expend State funds for the improvement of property where the State has less than a fee simple absolute (i.e., no reversionary clause). In light of the obvious intendment of this statute of avoiding the financial loss which might otherwise be incurred by the State where public funds are expended for the improvement of property which may subsequently revert to the grantor, the
1. "The inclusion of one is the exclusion of another."

756
office of the Attorney General has repeatedly taken the view that even the acceptance of deeds containing such clauses should be avoided [See Ops. Att'y Gen. 395 (1962) ; id. at 384, 386 (1961) ; id. at 573 (1955) ; id. at 502 (1953) .] with the sole exceptions being rather unique situations such as deeds to the Forestry Commission of sites for lookout towers containing a reversionary clause conditioned upon continued use for forestry purposes, provided that the Forestry Commission is also given the right of removing such tower and incidental improvements at any time (and where no "permanent" improvement is contemplated). See Op,s. Att'y Gen. 357, 359 (1952).
April 30, 1965
TEACHER TENURE
This is in reply to your letter wherein you inquire:
1. Whether a county board of education which has filled a contract of employment with an employee and desires not to rehire him has any obligation or responsibility to the employee?
2. Whether a county board of education has any obligation of explaining to interested groups why it decided not to rehire the employee for another year?
OPINION
1. Where a county board of education enters into an employment contract with a school principal, teacher or other employee, the term of the contract (in the absence of any valid local law to the contrary) is limited to a single year. Therefore it is my unofficial opinion that the obligations and responsibilities of the county board towards such employee, being contractual in nature, cease to exist when the terms of the one year contract have been fulfilled.
2. Inasmuch as the question of rehiring an employee whose contract has expired is a matter which addresses itself exclusively to the discretion of the county board of education, such board is under no legal obligation (as opposed to considerations of courtesy and public relations) to explain why the employee's contract was not renewed.
DISCUSSION
1.
While no statute expressly declares that the contract between a county board of education and its employees must be limited to a single year, Georgia Code Ann. 32-928 does provide generally that it is unlawful for any board of education "to make any contract involving the expenditure of funds in excess of the total appropriation

757
for the current fiscal year." Moreover, the school budget is prepared on a yearly basis, Georgia Code Ann. 32-641, with the allotment of teachers and other certified personnel to the local systems under the Minimum Foundation Program also being made annually by the State Board of Education. In addition to the necessary implication of the foregoing statutes (along with an absence of any tenure laws in this State), Georgia Code Ann. 32-1305 expressly refers to "the twelve month contract for teaching in any public school within the State." Based upon the foregoing, the Office of the Attorney General has repeatedly ruled that in the absence of any local law to the contrary, the term of a teacher's contract is limited to a single year as a matter of law. E.g., Ops. Att'y Gen. 123 (1957); Ops. Att'y Gen. 289 (1955) ; Ops. Att'y Gen. 285 (1955).
Inasmuch as the relationship between a principal, teacher or other school employee and the employing school board is manifestly a contractual relationship, with the rights, duties, obligations and responsibilities of both parties being controlled by the normal rules of contract law, see e.g., Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (1918), it follows that the county school board has no further responsibilities or obligations toward the employee after it has fulfilled all of the terms of the one year contract.
2.
Although minimum qualifications for the employment of school personnel may be prescribed by the State Board of Education, the actual selection of school personnel is vested in local boards of education acting upon the recommendations of their local school superintendents. See Georgia Code Ann. 32-607. Inasmuch as this code section clearly makes the question of selection of principals, teachers and other school employees a matter which addresses itself solely and exclusively to the discretion of the local board of education (and local school superintendent), it would seem to follow that, in refusing to renew an employment contract with a school employee, a local board of education is not legally obligated to explain why or give reasons for its refusal to rehire the employee. See e.g., Warren v. Davidson, 218 Ga. 25, 26 (1962); Accord, Martin v. Tripp, 210 Ga. 284, 285-86 (1954) 1 In such situations, of course, the discharged employee and/ or other interested parties are ordinarily given the opportunity to express themselves on the matter at the next board meeting and frequently the Board will then give its reasons for refusing to hire the individual in question as a matter of courtesy and public relations. It is not, however, legally obligated to give any explanation for such decision.
1. "lex non praecipit inutilia" (The law does not command useless things.)

758
May 3, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether the State Board of Education may legally make grants of State funds to its employees (including teachers in the Georgia School for the Deaf and Georgia Academy for the Blind) in order to assist them in advanced studies at the college or university level.
Except where the grant of financial assistance is made to match Federal scholarship funds the State Board of Education has no legal authority to make such grants to its employees (including teachers in the Georgia School for the Deaf and Georgia Academy for the Blind) in order to assist them in advanced study at the college or university level. It may, however, indirectly assist its employees in such situations through payments made directly to the educational institution involved in order to procure such advanced study courses for said employees.
It is axiomatic that the powers of public officers and boards are limited to those defined by law, Georgia Code Ann. 89-903, and in the absence of an express, or at the very least of a necessarily implied grant of power to do so, public officers and boards cannot lawfully pay out public funds. See e.g., Cole v. Poster, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142 (1) (1933). Moreover, where the proposed disbursement is to an individual for reasons other than payment for services rendered, an even more serious question arises under Article VII, Section I, Par. II of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 2-5402]. As a starting point this constitutional provision precludes the General Assembly from granting, by vote, resolution or order, any donation or gratuity in favor of any person. Of the exceptions which this constitutional provision itself provides to the basic prohibition of donations and gratuities, it would appear to me that only two could reasonably be deemed to have any bearing on the precise question under consideration. The first is the seventh subparagraph of the provision [Georgia Code Ann. 2-5402 (7)] which provides in part:
"State Departments and agencies of the State Government of Georgia shall have the authority to disburse State funds to match Federal funds in order to provide qualified employees with graduate or post graduate educational scholarships and for use in other Federal education programs. The terms and conditions thereof shall be prescribed and regulated by the various departments and agencies granting the scholarships but shall include the condition that personnel to whom these scholarships are extended must, as a prerequisite thereto agree to work for the department or agency granting the scholarships for at least two years for each year spent in study or refund the money received for said scholarship pro rata...."
While this constitutional exception to the general proibition of donations and gratuities would seem to be applicable to employees of

759
the State Board of Education (including teachers in the Georgia School for the Deaf and Georgia Academy for the Blind), it is quite clear that it is limited to those situations where the grant of State funds is made to match funds advanced by the Federal government for such scholarship purposes. Hence, this constitutional exception would not authorize legislation (let alone Board regulations) which would permit grants to the State Board's employees independently of a Federal education assistance program.
The second constitutional exception worthy of mention is that set forth in the eighth subparagraph of the provision [Georgia Code Ann. 2-5402 (2)] which authorizes the State Board of Education to grant scholarships to citizens who reside in this State:
"who are interested in becoming teachers . . . ."
Suffice it to say of this provision that it applies to individuals "interested in becoming teachers" and would be unlikely to be construed by the courts as authorizing grants to persons who already are teachers.
In concluding that with the exception of the granting of state matching funds for Federal scholarship programs it is not legal for the State Board of Education to make grants to its employees in order to assist them in advanced study programs, I must emphasize that this conclusion should not be interpreted as one which would prevent any disbursements whatsoever for the purpose of providing additional training for employees of the State Board of Education. It should be noted, for example, that Section 52 of the Minimum Foundation Program of Education Act, see Georgia Laws 1964, pp. 3, 45-46 [Georgia Code Ann. 32-652] provides:
"The State Board of Education is hereby authorized to engage in or otherwise make provision for ... and such other projects as may, in the opinion of the board, tend to support, improve or strengthen the public school system of this State, the quality of education provided Georgia's children and youth in the public schools of this State and the qualifications and technical skills of professional personnel employed in the public schools of this State, and is hereby authorized to employ or contract for the services of specialists and others as may be necessary or desirable for such purposes and to cooperate with public school systems and public and private educational institutions and agencies within or without the State for such purposes. The State Board may provide for the allotment of education funds for the purposes provided for in this section."
This statutory provision would appear to authorize expenditures for academic and technical courses of study for employees of the State Board of Education (including teachers in the Georgia School for the Deaf and Georgia Academy for the Blind) provided that such studies are directly related to public education and the duties or anticipated duties of such employees.l So long as the disbursements
1. It would not, of course, authorize courses in fields totally unrelated to any teaching activity or function of the State Department of Eduction.

760
are made to third parties for the obtaining of such courses of study (e.g., disbursements directly to public or private education institutions) and not to the individuals receiving such training there would seem to be no conflict with the constitutional prohibition of donations or gratuities to such individuals inasmuch as their work related training, even where consisting of formal courses of post graduate study, is intended for the benefit of the State and not the individual. The rationale here is the same as that which I previously expressed in an official opinion addressed to you and dated March 3, 1965, wherein I concluded:
"It is my opinion that where the course of advanced study being pursued by the staff member is directly related to his assignment in the Department of Education or to assignments he is expected to undertake upon the completion of his studies, the State Board of Education may lawfully continue to pay such member's salary while he is temporarily way from his assigned duties in the Department."
This prior opinion noted that there might be many instances where the technical knowledge required of staff members of the Department of Education could most expediently be met by having them temporarily absent themselves from their regular duties for formal advanced studies.
May 5, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you pose several questions relating to the recent amendment to Article VII, Section IV, Par. I of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 2-5701] providing for payment of workmen's compensation premiums from educational funds. Specifically, you asked:
1. Whether this recent amendment requires any enabling legislation to become operative?
2. Whether the provisions of Georgia Laws 1964, pp. 67577 (which purport to authorize county boards of education in ail counties having a population of less than 300,000 to provide workmen's compensation insurance for their employees) are effective in view of the recent constitutional amendment?
3. Whether school employees are covered by the provisions of the Workmen's Compensation Laws, and whether payment of the premiums for workmen's compensation insurance from education funds by a county school board would be a legal expenditure?
1. The 1964 Amendment is self-executing and does not require, enabling legislation in order to become operative.

761
2. The provisions of Georgia Laws 1964, pp. 675-77, are of doubtful constitutionality but this would seem to be an academic matter in view of the foregoing answer to question one.
3. The general coverage of school employees by the workmen's compensation law is not affected by the 1964 Amendment. What the recent Amendment does do is to authorize (but not require) county boards of education to assume the financial burden of providing workmen's compensation for school employees and the educational funds for this purpose. Where county boards of education decline to assume this burden the existing obligation of county authorities to provide for such coverage of school employees from general county tax funds continues.
DISCUSSION
1.
As amended, the pertinent portions of Article VII, Section IV, Par. I of the State Constitution [see Georgia Code Ann. 2-5701 (1964 Supp.)] state:
"The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose except: ...
[18] County boards of education are 'hereby authorized to provide for workmen's compensation for school personnel and to pay for the same from educational funds."
It is my opinion that the phrase "are hereby authorized" causes the new Amendment [i.e., subparagraph No. 18] to be "self-executing" under the prevailing view that a constitutional provision does not require enabling legislation where there is nothing to indicate that such statutory action of the legislature is needed to render the provision operative. See 16 C.J.S. Constitutional Law 48, p. 143.1
2.
It is true that the time with reference to which an Act's constitutionality is to be determined is the date of its passage, and that if unconstiutional then it is forever void. E.g., Commissioners of Fulton County v. Davis, 213 Ga. 792 (1958) ; Grayson-Robinson Stores, Inc. v. Oneida Ltd., 209 Ga. 613, 617-19 (1953); Christian v. Moreland, 203 Ga. 20, 21 (1947). Thus, there is considerable doubt as to whether or not the courts would hold that Georgia Laws 1964, pp. 675-77 (which purports to authorize county boards of education in all counties having a population of less than 300,000 to provide workmen's compensation insurance for their employees) is unconstitutional for reason that it was not authorized by Article VII, Section IV, Par. I [ 2-5701] at the time it was enacted by the General Assembly. In view of my conclusion in response to question one, however, [that the
1. A typical example of constitutional provision which is not selfexecuting and does require enabling legislation would be one. directing or authorizing the legislature to take certain specified actions.

762
constitutional provision is self-executing], this would now seem to be an academic matter.
3.
As shown by an official opinion of this office dated November 21, 1961, the employees of county boards of education were covered by the provisions of the Workmen's Compensation Act even prior to the recent constitutional and legislative enactments. See Ops. Att'y Gen.168-70 (1960-61). In this opinion I stated:
"Public school employees, or employees of a local board of education, are in fact, therefore, to be considered as being employees of the county in some respects and as such they are now covered by the Workmen's Compensation Act ... in the same manner as are other county employees. The premiums to be paid for Workmen's Compensation insurance for public school employees cannot, however, be paid out of education funds but must be paid out of general tax funds raised by the county. . . ." (Emphasis added)
* * * *
"I am of the opinion that legal responsibility for complying with the Workmen's Compensation Act, insofar as the same applies to employees of the local county school system ... rests with the governing authority of the county ... and not with the local board of education."
It is my opinion that the only alteration of the Jaw which is effected by the new constitutional amendment, is that which relates to the "financing" of workmen's compensation in such situations. Prior to this new amendment it was (as indicated above) the obligation of the county authorities to procure workmen's compensation coverage for school employees and to pay for the same from general county tax funds. A school board was not permitted to use education funds for this purpose. With the adoption of this new constitutional provision, county school boards are now "authorized" (but not required) to use educational funds to provide for workmen's compensation for school employees. Where a county school board does elect to use educational funds for this purpose it follows that the county authorities will be relieved of their obligation to provide the same. If, on the other hand, the county school board decides not to use educational funds to provide workmen's compensation for its employees, the county authorities wili continue to bear the responsibility of providing the same for school employees just as it bears such responsibility for all other county employees.
May 5, 1965
OPINION TO THE EMPLOYEES' RETIREMENT SYSTEM
You ask several questions concerning Employer and Employee contributions to the Employees' Retirement System and for Social Secur-

763
ity coverage-the questions arising from circumstances in the case of a member who was dismissed on December 31, 1959, and who, after protracted legal proceedings, was ordered subsequently reinstated.
You asked whether retirement contributions paid now for that period could be considered as valid Employer and Employee contributions on earnable compensation and whether the period of time from January 1st, 1960, until the Employee's reinstatement in late 1963, could be considered as valid creditable service for the purposes of Employees' Retirement System coverage. You also asked whether payments could be made for Social Security coverage for this period.
To answer your first questions, the Employees' Retirement System Act (as found in Georgia Code Ann. Ch. 40-25) provides in 402501(6) "'service' shall mean service rendered as an employee and paid for by the 'employer' ...."It could be contended that no service was actually rendered by this member and he therefore would not fit the definition as contained in the Act. However, I feel this would be defeating the purpose of the retirement system and would be expressly repugnant to the opinion to the Georgia Court of Appeals in Scott v. Undercofler, 108 Ga. App. 460 (1963). The Court, in that case, expressly set forth the proposition that to deprive the employee of his employment, or from rendering of services, through an invalid pretext of dismissal was erroneous and one for which the employee had a remedy. The Court, in referring to his dismissal and proceedings thereafter, stated "a notice that does not comply with such provisions [specific notice] is void and all proceedings thereafter are a nullity. The defect in the notice given . . . was fatal to his discharge. For this reason the trial court erred in overruling the Petition for Certiorari and affirming the dismissal of the employee." The effect of this decision by the Court of Appeals was to order the reinstatement of the employee to his position, and while not stated per se, it also meant he was entitled to all compensation and benefits as though he had been continuously employed by the State.
After careful consideration it is my opinion that this decision was also intended to cover not only direct remuneration to him, but also all benefits which are incidental to his employment-such as the Employees' Retirement System. It cannot be doubted that the system of benefits provided by the Employees' Retirement System Act are incident to and a condition of employment. The benefits have been held as vested interest of employees, provided certain perquisites are met, and employees may not be deprived of these. This being the situation, to rule that an employee, who was prohibited from his employment unjustly, could by court action have this wrong corrected and secure his reinstatement together with compensation for the time during which he was wrongfully denied employment, but could not, without resort to further court action, secure to himself the benefits of the State Employees' Retirement System, would be so odius and repugnant to all sense of justice as to make the answer to the question apparent immediately upon its propoundment. It is definitely my opinion that employer and employee contributions should be accepted and credited to the members account for the purposes of retirement and that the period of time during which he was

764
wrongfully denied employment should be considered creditable service for purposes of the Act.
The question of social security coverage is somewhat different. I do not feel there is anything in the State Enabling Act (Georgia Laws 1953, p. 294, as amended, and as found in Georgia Code Ann. Ch. 99~21) which would prohibit the payment of these contributions and their remittance to the proper federal social security authorities. However, before this point could be authoritatively answered, I would suggest you contact the District Social Security Administrator and secure a ruling from him as to the acceptance or rejection of such contributions. Any opinion which I might render upon the force and effect of the federal statutes would be simply advisory in nature. It would not in any way be binding upon the federal personnel. Should they choose to disregard or differ with such opinion, they are entirely free to do so, being bound only by opinions of the U. S. Attorney Gen~ eral or counsel for the Social Security Administration.
May 6, 1965
OPINION TO THE DEPARTMENT OF PUBLIC SAFETY
This is in reply to your letter requesting my official opinion upon the following question:
Does the Act approved April 17, 1963 Georgia Laws 1963, p. 652) and codified as Chapter 92A-9 of the Georgia Code Annotated, which provides for licensing of dealers in pistols and short barreled firearms, require a corporation which has more than one retail outlet to obtain more than one license?
Section 92A~901 of the Code provides:
"Any person, firm, retail dealer, wholesale dealer, pawn~ broker, or corporation who shall sell, dispose of, or offer for sale, or cause or permit to be sold, disposed of or offered for sale any caliber pistol, revolver or shot barreled firearm of less than 15 inches in length, whether the same shall be their own property or whether they shall sell the same as agents or employees of others, shall obtain from the Department of Pub~ lie Safety a license permitting the sale of said caliber pistols and guns. Nothing in this Chapter shall apply to or prohibit the casual sales of the articles referred to between individuals."
Section 92A-904 provides:
"Every recipient of a license to sell these firearms shall keep such license conspicuously displayed on his business premises."
Section 92A-905 provides:
"All annual license fees described by this Chapter shall be paid to the Department of Public Safety on or before the first

765
day of July of each year. The Department of Public Safety shall issue its receipt for every payment. The annual license payment to acquire such license shall be $25 for the owner of an establishment which sells these type firearms. The annual employee license fee shall be $3."
In construing the language contained in these sections, it appears that the intent of the Legislature was to require each establishment which sells these type firearms to acquire a license and to keep it conspicuously displayed on the premises of the establishment. It is, therefore, my opinion that a corporation must obtain a license for each retail outlet which sells these firearms.
May 10, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether an individual appointed to fill a vacancy in the office of county school superintendent pending the election of a new superintendent must (1) meet the qualifications of superintendents generally, and (2) must file a certificate showing such qualifications with the State Board of Education.
It is my opinion that unless the individual has previously served at least one term as a county superintendent of schools, both answers must be answered in the affirmative because of a 1963 revision of Georgia Code Ann. 32-1004. As rewritten by Section 1 of Georgia Laws 1963, p. 356, 32-1004 now reads:
"Before any person shall be qualified or eligible to hold office of the county superintendent of schools, he shall be a citizen of the county if elected by the voters of the county, but it shall not be necessary that he be a citizen of the county if elected or appointed by the board of education, he shall have earned and hold a five-year degree from an accredited college or university, or shall have not less than a four-year degree earned and held from an accredited college or university and shall have registered for courses leading toward obtaining the requirements of a five-year certificate, and shall have had not less than three years of actual teaching or education administration experience, and shall be a person of good moral characer, never convicted of any crime involving moral turpitude. Before becoming eligible to qualify for election or appointment, candidates for the position of county school superintendent of schools must file with the State Board of Education a certificate under oath, showing qualification hereunder: Provided, that this section shall not affect any school system in existence prior to the adoption of the Constitution of 1877, nor any superintendent of schools of any such school system."
It should be noted, however, that Section 2 of Georgia Laws 1963, p. 356, contains a clause providing that the provisions of the Act

766
"shall not apply to any person holding the office of county superintendent of schools at the time of the effective date of this Act, nor shall it apply to any person who has served at least one term as a county superintendent of schools."
May 10, 1965
OPINION TO THE STATE HIGHWAY DEPARTMENT
This will reply to your letter in which you ask if the Georgia Administrative Procedure Act (Georgia Laws 1964, p. 338, as amended), or any portion thereof, is applicable to the State Highway Department or any of its divisions or agencies.
An examination of the Administrative Procedure Act reveals that its expressed purpose "is to provide a procedure for administrative determination and regulation where expressly authorized by law or otherwise required by the Constitution or statute." (Section 1). It is designed to make uniform the rule making procedures of the various departments and agencies of the state government that are authorized to promulgate rules and regulations within the purview of the statutes relating to such departments and agencies. The Act is further designed to make uniform the procedure used in the various departments and agencies charged with the duty of holding administrative hearings, as for example, the fixing of rates for such commodities as insurance, price fixing for certain agricultural commodities, the granting, suspension, revoking, denying or amending of licenses, and other like proceedings.
A review of the statutes dealing with the Highway Department reveals that the rule making authority is contained in Georgia Code Ann. 95-1614, which provides:
"The State Highway Board shall provide reasonable rules and regulations which shall be uniformly applied throughout the State, for keeping up-to-date, between official inspections and measurements the records heretofore called for in this Chapter and the State Highway Department shall use the most recent and up-to-date information in compiling these records; Provided, such information is reasonably accurate and has been gathered either by an official inspection and measurement or in accordance with the rules and regulations of the State Highway Department for keeping these records up-to-date. The proper county authority in each county shall comply with reasonable rules and regulations of the State Highway Department necessary to keep the records called for herein accurate and up-to-date."
The records and information referred to in the above quoted section are enumerated in 95-1611 and include the mileage of all roads and bridges in every county of the State that are on each of the county road systems being maintained by the various counties,

767
the mileage of all roads and bridges that are part of the State highway system and are being maintained by the State Highway Department, the mileage of all roads and bridges in each county that are paved and unpaved, and such other information as to the condition, status, type and use of all roads and bridges as is deemed necessary for long range planning of highway maintenance and construction. Under section 2, subparagraph (a), all "public authorities" are expressly excluded from the provisions of said Act.
Section 2, subparagraph (f) of the Administrative Procedure Act provides :
"Rule means each agency regulation, standard or statement of general applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of prior rules but does not include the following:
"1. Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;
* * * *
"5. Rules concerning the use or creation of public roads or facilities which are communicated to the public by use of signs and symbols.
"6. Rules which relate to the acquiring, sale, development and management of property (both real and personal) by the State or of an agency;
"7. Rules which relate to contracts for the purchase and sales of goods and services by the State or of an agency;
* * * *
"9. Rules relating to loans, grants and benefits by the State or of an agency;" (Emphasis added)
Section 95-1614, supra, deals solely with the collection of statistical data to be used by the Highway Department in long range planning for the construction and maintenance of the public highways of the State; and, therefore, does not fall within any of the provisions of the Georgia Administrative Procedure Act, as amended.
I have carefully examined all other applicable activities of the State Highway Department, its divisions and agencies, in relation to this law, and it is my opinion that their functions fall clearly within one or more of the exclusions contained in section 2, sub-paragraph (f) of said Act; and, therefore, this law, as amended, is not applicable to the Highway Department at the present time.

768
May 11, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether funds allotted to local school systems by the State Board of Education as "sick leave expenses" may legally be used by local school boards to pay the local board's share [i.e., the "employer's share"] of the cost of social security coverage for substitute teachers employed under sick leave programs. You refer to the statutes requiring local school systems to guarantee sick leave for teachers and school bus drivers, and state that such sick leave programs are currently being financed by the State Board. You also note that the employer's share of social security costs respecting regular teachers is paid for from local school funds and not from the State allotment for teacher salaries.
In the absence of any policy or regulation of the State Board of Education to the contrary, it would be legal for local boards of education to use funds allotted to them as sick leave expenses under Georgia Code Ann. 32-613 (1964 Supp.) for the payment of their share (i.e. the employer's share) of the cost of social security coverage for substitute teachers employed under their sick leave programs.
Georgia Code Ann. 32-1304 entitles teachers in the public schools of Georgia to sick leave with full pay on the basis of one and onefourth working days for each completed school month of service and further declares that no teacher utilizing sick leave shall be required to pay the cost of employing a substitute teacher to serve in his absence. Similar benefits are afforded bus drivers under Georgia Code Ann. 32-832.
In order to finance the sick leave programs required by the foregoing code sections, Section 13 of the Minimum Foundation Program of Education Act [see Georgia Code Ann. 32-613 (1964 Supp.)] provides in part:
"The amount of funds needed by a local unit of administration for maintenance, operation and sick leave expenses not otherwise provided for in Section 11 through Section 21 1 of this Act shall be determined by multiplying the number of teachers allotted to the local unit of administration under provisions of Section 11 of this Act by a sum of money per teacher to be determined by the State Board of Education which shall not be less than $400 per State allotted teacher...." (Emphasis added)
It is my understanding that while utilizing his sick leave, the regular teacher continues to receive his normal pay [the State's share of which is financed through Section 11 of the Minimum Founda-
1. Sections 11 through 21 provide for State allotments to local school systems for salaries of the authorized number of teachers and other certificated personnel, for textbooks, consumable supplies, library books and nonconsumable materials, transportation expense, isolated school expenses, etc.

769
tion Program of Education Act (Georgia Code Ann. 32-611)] with the local school board continuing to pay its "employer's share" of the cost of the regular teacher's social security coverage from local school funds. There would appear to be no question as to the propriety of the local school boards use of the 32-613 allotment to pay the salary of a substitute teacher and, as I understand your inquiry, the sole question is whether it is also proper to use a portion of the 32613 allotment to pay the employer's share of the cost of social security for the substitute teacher, in view of the fact that social security costs for regular teachers are paid for from local school funds rather than from any State allotment.
It is noted, of course, that 32-613, in addition to the language quoted above concerning the allotment "for maintenance, operation and sick leave expenses," provides that:
"The State Board of Education shall define the term 'maintenance, operation and sick leave expenses' and shall have authority to establish minimum requirements and standards ... for local distribution, use and expenditure of funds allotted under this Section to local units of administration."
Hence, it would seem obvious that the State Board of Education has full authority to allow or disallow such funds to be utilized to pay the local system's share of the social security coverage for substitute teachers or school bus drivers.
In the absence of any policy or regulation of the State Board of Education on the point, however, I am inclined toward the view that the local school board may legally use the 32-613 allotment to pay its "employer's" share of social security costs respecting substitute teachers. This opinion is based upon the phrase "sick leave expenses" which I think might reasonably be construed as relating to all additional expenses incurred by a local board of education which directly result from the absence of the regular teacher. It would seem only logical to conclude that the additional social security expense to a local school board which results from its employment of a substitute teacher is just as much a "sick leave expense" as is the salary of the substitute teacher. As I have already pointed out, of course, the ultimate answer to this question is a matter of policy which the law places within the discretion of the State Board of Education.
May 12, 1965
SCHOOL BOND ISSUE
This is in reply to your letter requesting an opinion as to whether a school bond issue requires the approval of both a majority of all voters registered in the school district and, in addition thereto, the approval of two-thirds of those qualified voters actually casting ballots in the bond election; or, whether it will suffice if the assent con-

770
sists of a simple majority of those qualified voters in the school bond election.
While the matter cannot be said to be free from all doubt (I have been unable to locate any relevant court decisions) it is my unofficial opinion that the voter approval now required to support a school bond issue is a simple majority of the qualified voters actually voting in the bond election.
While under the Constitution of the State of Georgia of 1877 a bonded indebtedness incurred by a county, municipal corporation or political subdivision required the assent
"of two-thirds of the qualified voters thereof, voting at an election for that purpose to be held as prescribed by law: Provided, said two-thirds so voting shall be a majority of the registered voters ..." [See Art. VII, Sec. VII, Par. I, Constitution of the State of Georgia of 1877 (Georgia Code Ann. 2-5501)],
the equivalent provision of the 1945 Constitution, to wit: Art. VII, Sec. VII, Par. I [Georgia Code Ann. 2-6001] requires only 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...."
It is unfortunately true that the Code Section enacted by the General Assembly under the 1877 Constitution in this regard [i.e., Georgia Code Ann. 87-203, 87-204] have not been similarly modified, and continue to speak of "the requisite two-thirds of the qualified voters" who are also "a majority of the registered voters" of the political division involved. Inasmuch as Georgia Code Ann. 321403 provides that a school bond election "shall be called and held in the manner prescribed by Chapter 87-2," there is undoubtedly some confusion as to exactly what sort of vote approval is required to support a school bond issue.
Although I have been unable to locate any court decision in point, it is my opinion that should the matter be litigated, the courts would probably hold that to the extent 87-203 and 87-204 set forth the voter approval requirements of the 1877 Constitution, they have been repealed by implication. Accord, Editorial Note to Georgia Code Ann. 87-201, 87-204 (1964) Supp.). I would think that the courts would most likely conclude that it was the intention of the framers of the 1945 Constitution (as well as the sovereign will of the people in their adoption of the same) that the construction of school buildings (as well as other needed public facilities) be facilititated by a reduction of the difficulties respecting voter approval which were contained in the 1877 Constitution. This reflection of the sovereign will of the people in the 1945 Constitution would, of course, take precedence over earlier inconsistent statutory enactments of the General Assembly and, for this reason, I conclude that to the extent that 87-201 and 87-204 are inconsistent with Article VII, Sec. VII, Par. I of the 1945 Constitution, such code sections are repealed by implication.

771
May 17, 1965
MARRIAGE
We are in receipt of your letter in which you requested information concerning the issuance of marriage licenses pursuant to the recently enacted Marriage Law (Georgia Laws 1965, p. 335, Georgia Code Ann., as amended, Chapter 53-1 and 53-2)
Your questions and our answers thereto are as follows:
1. Except in cases of pregnancy, are syphilis tests still required ?
A. Yes.
2. If both parties to the marriage are 21 or over, may the license be issued immediately?
A. Yes.
3. If both (or either) of the parties are over 19 but under 21, what are the requirements with respect to parental consent and waiting period?
A. The parties may be married with or without parental consent upon the expiration of a three-day waiting period. If there is proof of pregnancy, however, they may be married immediately with parental consent.
4. If 19 or under, but at least 18 in case of male and 16 in case of female, must parental consent be obtained even where pregnancy is proved?
A. Yes.
5. If the male is under 18 and/or the female is under 16, must parental consent be obtained even in cases of pregnancy?
A. Yes.
6. Where parental consent is required, is the consent of both parents necessary?
A. Georgia Code Ann. 74-108 provides that parental power is vested in the father of a minor child unless and until such power is relinquished in the several ways set forth in that section, or unless the father dies, in which case the mother assumes such power. A further exception, of course, is the case in which the parents are divorced or separated, in which case custody is determined by the courts.
Sub-paragraph 5 of 74-108 indicates that consent to marriage of the child emancipates the child. Consent under that sub-paragraph clearly relates to consent of the father as indicated in the opening sentence of the section, unless the father has relinquished or otherwise lost custody.
From the foregoing, it would appear that parental consent would be sufficiently given if given by the father alone, unless he had relinquished parental power as provided in 74-108.

772
On the other hand, the new marriage law in several instances refers to the consent of "parents" in the plural and it would not be unreasonable for one to argue that consent of both parents was intended to be required.
It is our conclusion that in all cases where the consent of both parents is reasonably obtainable, an Ordinary should obtain it. If the consent of both parents is not obtainable, then at least the consent of the father is necessary (where he has not relinquished parental power).
7. Is a physician's certificate required to be in affidavit form?
A. No. The law only contemplates that a physician's certificate be presented, and that the certificate bear the signature of the physician. Thus, any reasonable form of certification by the physician would appear to suffice.
May 14, 1965
OPINION TO THE DEPARTMENT OF FORESTRY
I am pleased to acknowledge receipt of your letter in which you request my official opinion as to whether or not the Georgia Forest Research Council falls within the provisions of the Georgia Administrative Procedure Act (Georgia Laws 1964, p. 338, as amended).
I am pleased to call your attention to the verbiage contained in Section 2 of the Administrative Procedure Act, which, inter alia, defines the term "Agency" as any "state board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases...." Section 2 (a) therefore determines coverage less the following specific exemptions, to wit:
(1) The Governor; the Judiciary; and the General Assembly. (2) All public authorities. (3) The Board of Pardons and Paroles. (4) The State Board of Probation. (5) The Board of Bar Examiners. (6) The Board of Corrections and its penal institutions. (7) The State Board of Workmen's Compensation. (8) Public Service Commission. (9) State Personnel Board (Merit System). (10) State Supervisor of Purchases. (11) The regulation of liquor and alcoholic beverages. (12) Any school, college, hospital or other such educational, eleemosynary or charitable institution. (13) Any agency when its action is concerned with the military or naval affairs of this State.

773
There are also other limitations on coverage. For example, the Act is only concerned with State agencies and with such administrative functions as rule-making and adjudications.
It appears, therefore, that the sole purpose of the Administrative Procedure Act is to achieve uniformity in reference to basic areas and in so doing to equip each agency with the means of obtaining statutory purposes, as well as to provide ample safeguards in protecting the public interest.
I am pleased to call your further attention to Section 2 (f) of the Administrative Procedure Act which specifically excludes the following types of rules, to wit:
"1. statements concerning only the internal management of an agency and not affecting private rights or precedures available to the public;
* * * *
"3. intra-agency memoranda;
* * * *
"6. rules which relate to the acquiring, sale, development and management of the property (both real and personal) of the State or of an agency;
"7. rules which relate to contracts for the purchases and sales of goods and services by the State or of an agency;
"8. rules which relate to the employment, compensation, tenure, terms, retirement or regulation of the employees of the State or of an agency;
"9. rules relating to loans, grants and benefits by the State or of an agency."
After a careful review of the laws applicable to the Georgia Forest Research Council (Georgia Laws 1953, p. 45) and the procedures, forms and standards issued or prescribed and utilized by the Georgia Forest Research Council, it is my official opinion that such Council and its policies fall within the exclusions itemized above in that they specifically deal with internal operational activities and contracts with other State agencies for the purpose of forestry research as an agency of the State government, and therefore does not come under the provisions of the Georgia Administrative Procedure Act.
May 25, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter in which you request an opmwn as to whether or not the cost of that office space in the State Office

774
Building which has been allocated to the Vocational Rehabilitation Division of the State Department of Education (6,600 square feet) may be used for federal matching purposes under the Federal Voca~ tiona! Rehabilitation Act. You state in your letter that the State Office Building Authority [presumably in accordance with Georgia Code Ann. 91~527 (a)] has computed the cost of such space to be $3.00 per square foot, which includes $2.20 for the amortizing of the bonded indebtedness incurred in the construction of the building and $1.10 for maintenance and upkeep. It is my understanding that neither the Vocational Rehabilitation Division nor the Department of Education are charged with rent by the State Office Building Authority, but that the situation is one whereby the General Assem~ bly, makes direct appropriations to cover such cost with the State Department of Education being liable for rent only in the event the General Assembly fails to appropriate a sum sufficient to cover such costs.
In reply to your request for an opinion as to whether this "expense in the nature of rent" (which is not currently being borne directly by the Vocational Rehabilitation Division) may be used for federal matching fund purposes under the federal Vocational Rehabilitation Act, I am unfortunately not in position to give you a positive yes or no answer. The question does not directly involve the State but turns instead on the construction of the Federal Vocational Rehabilitation Act, and particularly upon that section of the Act which provides:
"From each State's allotment under this section for any fiscal year ending after June 30, 1962, the Secretary shall pay to such State an amount equal to the Federal share [deter~ mined as provided in section (i) of this title] of the cost of vocational rehabilitation services under the plan for such State approved plan ... including expenditures for the administration of the State plan." (Emphasis added)
It, therefore seems to me that the determination of whether or not the receipt of office space free of charge is a "cost of vocational rehabilitation services" is a determination which will have to be made in the first instance by the United States Department of Health, Education and Welfare [which bears the primary responsibility for construing the federal statutes relating to those programs which it administers]. Its determination would, of course, be subject to judicial review. In talking to Carl Harper, Esq. (the Regional H.E.W. attorney) I gathered that the general rule is that there would have to be something more than the bare receipt of office space to enable the value of such space to be used for matching fund purposes. Ac~ cording to Mr. Harper, it would be possible, on the other hand, to use any rental payments which actually are made by the Vocational Rehabilitation Division for federal matching fund purposes.

775
May 25, 1965
OPINION TO THE BOARD OF WARM AIR HEATING CONTRACTORS
I have your letter wherein you request my opinion on the following question: "If a person holds a certificate of skill and qualifications for doing warm air heating, can he, under the law, qualify more than one company for registration with the Board?"
Section 84-3802 of the Georgia Code Ann. reads as follows:
"84-3802. Warm air heating contractor defined.-A warm air heating contractor is defined as an individual, partnership or corporation engaged in the design of warm air heating systems and/or sale, and/or installation of warm air heating equipment and is or has a partner, firm member, or regular employee, who is skilled in the art of design and installation of warm air heating equipment, as hereinafter enumerated and who has sufficient practical knowledge and experience to efficiently and properly assume the responsible charge and direction of others in the design of warm air heating systems and installation of such equipment or heating systems in said counties, and who qualifies as such under this Chapter."
The foregoing section and other sections of chapter 84-38 dealing with warm air heating contractors uses throughout by its terms the singular rather than the plural. If a person who is qualified and licensed under the Act were allowed to qualify more than one company, it would follow that there could be no limit on the number of companies such person could qualify. Necessarily, if one person qualifies more than one company he could devote a small part of his time and skill to each company which would, in my opinion, defeat the purpose of the Act.
It is my opinion that under the aforesaid Act one person who holds a certificate of skill and qualifications under the aforesaid Act may not qualify more than one partnership company or corporation.
May 26, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you request an opinion as to whether a local school system which assigns high school students to area vocational-technical schools for instruction may include such students in their computation of "pupils in average daily attendance" for the purpose of determining its overall allotment of teachers and other professional personnel under the Minimum Foundation Program of Education Act. From subsequent conversation it appears that the matter is somewhat complicated by the fact that the Constitution and statutes of Georgia provide for at least three different approaches

776
to vocational education in this State. Statutes authorize the various county and independent school systems to operate their own programs of vocational education, and also authorize the State Board of Education to establish and maintain area vocational, trade and industrial schools. In addition a 1960 amendment to the State Constitution authorizes any two or more counties to jointly establish area vocational trade schools and permits the State to expend funds for the support of such schools "as it does for presently established school systems."
My conclusions with respect to each of the three situations, as well as the reasons therefor are as follows:
CONCLUSIONS
1. Where the area vocational trade school is one which has been established and is operated and maintained by the State Board of Education it would not be proper for the students therein to be included for purposes of "average daily attendance" by a county or independent school system.
2. Where the area vocational trade school is one which is established by two or more counties or municipalities pursuant to the State Constitution it would not be proper for the students therein to be included for purposes of "average daily attendance" by any of the participating county or independent school systems.
3. Where a county or independent school system maintains and operates it own vocational school it may include for general "average daily attendance" purposes, those high school students which it has assigned to its vocational school.
DISCUSSION
1.
Georgia Code Ann. 1. 32-2218 declares:
"The State Board of Education, for and on behalf of the State of Georgia, is hereby authorized and empowered to locate, set up, establish, operate and maintain and carry on State area trade, vocational and industrial schools for teaching vocational, industrial and trade subjects,"
and Georgia Code Ann. 32-2222 authorizes the State Board to employ the necessary teachers and supervisors and directors required for the operation of such schools. In my opinion, this State operated program of vocational education could not be treated as a program of education of a county or independent school system to which the Minimum Foundation Program of Education Act 1 would apply for purposes of State financial assistance to such systems. See, e.g., Georgia Code Ann. 32-610 (1964 Supp.). It would seem to me to be clear beyond doubt that the phrase "in average daily attendance in the local
1. Georgia Laws 1964, pp. 3-49.

777
unit of administration" refers solely to attendance in the schools maintained and operated by the local system and not to a school operated by the State merely because it happens to be located within the territorial jurisdiction of the local system.
2.
With respect to area vocational trade schools established by two or more municipalities, counties (or combinations thereof) pursuant to Article VII, Section VI, Paragraph I (d) of the Constitution of the State of Georgia of 1945 [Georgia Code Ann. 2-5901 (d)], this same constitutional provision expressly provides that the political subdivisions establishing the school shall provide for a joint board to administer the same and that the State is authorized to expend funds for the support of such schools "as it does for presently established school systems." Coupled with the fact that the Minimum Foundation Program of Education Act defines the term "local units of school administration" as inclusive of "area public school systems," itwould seem that such multi-county or area schools are to be treated as independent units for purposes of teacher allotments. For this reason, I believe it would be improper for any participating county or independent school system to include any students which it has assigned to such area vocational school in its own "average daily attendance" computations.
3.
The Laws of Georgia further authorize county and independent school systems to establish and maintain vocational training programs, Georgia Code Ann. 32-2205 to 32-2217, and authorize the State Board to apportion all State, Federal or other funds made available to the State Board for vocational educational purposes to the various local school systems maintaining such programs:
" as additional aid for use in helping the local school units in defraying the cost involved in maintaining and operating approved vocational training courses or departments . . ." See Georgia Code Ann. Section 32-2208. (Emphasis added)
It is expressly stated that such "ad~itional" aid for vocational education purposes shall not affect the distribution of state funds for the support of the common schools generally, Georgia Code Ann. 32-2216, and there would seem to be no question but that it is a matter within the discretion of the local board of education as to whether it desires such vocational training courses or departments to operate in the same schoolhouses used for ordinary academic instruction or in a separate building designed solely for the purpose of vocational education. See Georgia Code Ann. 32-901 and 32-909. In either situation a high school student who is assigned to a vocational education program operated be a county or independent school system remains in the common or public schools operated by such system and may therefore continue to be included in such county or independent system's computations of "average daily attendance" for purposes of its general allotment of teachers and other professional personnel.

778
. May 31, 1965
OPINION TO THE PROPERTIES CONTROL COMMISSION
This opinion is submitted in response to the request of the State Properties Control Commission, as evidenced by the minutes of its regular meeting held on April 13, 1965, for an official opinion of the Attorney General as to whether the term "walls," as used in Paragraph I of the Lease Contract between the Western and Atlantic Railroad Commission, as Lessor, and Peachtree-Whitehall, Inc., as Lessee, dated December 26, 1950,1 as amended by an agreement between the same parties, dated December 21, 1954, encompasses the less-than-ceiling-high retaining walls of a proposed multiple-story parking garage on the leasehold premises.
Paragraphs I and II of the Lease Contract, as amended, provide in relevant part that:
I.
Lessee will not later than December 28, 1974 provide on the premises hereinabove described or part thereof a building or buildings one or more stories in height at its election of steel and/or concrete framing with wa11s of concrete or masonry. Said buildings shall comply with all building and zoning requirements of the City of Atlanta and State of Georgia and the lower level or floor shall be on a level with the sidewalk of any viaduct upon which said building abuts; provided, however, that should any of said buildings abut on more than one viaduct the lower level or floor of such building or buildings need not for its entire depth be on a level with the sidewalks of said viaducts, or either of them, provided only that said lower level or floor be substantially on a level with the sidewalk of one of said viaducts where said lower level or floor abuts said viaduct; provided further, that the beams and other construction members supporting said buildings may extend below the street level of any viaduct except that a clearance of 20 feet 3 inches shall be maintained above the present top of rail of the railroad tracks of Western and Atlantic Railroad and except that a clearance of 16 feet shall be maintained above the present top of rail of the Western and Atlantic Railroad's sidetrack serving the building known as the Old Journal Building. Said building or buildings shall be constructed with appurtenant water, sewer, gas and electric wire connections so as not to impair or obstruct the use of the land level of said area for railroad purposes. Said building or buildings may, at the option of the Lessee, be joined to buildings on adjoining property but shall be so constructed that they can be separated from adjoining buildings on neighboring property and made into separate architectural units. Said buildings (including any
1. Recorded in deed book 2599, pages 508-512, in the office of the Clerk of the Superior Court of Fulton County.

779
existing buildings incorporated in the plan) shall provide an area of not less than 100,000 square feet or space useful for commercial, business or industrial purposes and shall cost (including any existing buildings incorporated in the plan) not
less than $1,000,000.00 to construct.... (Emphasis supplied)
II.
Said buildings will be designed so that they may be adapted from time to time by interior alterations and improvements to be rented and used by subtenants for various business purposes, and the Lessee shall have the right, at its expense, at all times to make alterations and changes in the interior of said improvements of to change the subdivision thereof to suit the needs of its tenants or to make the improvements more suitable and desirable for rental purposes.
From an examination of the above mentioned minutes and after consultation with counsel for Peachtree-Whitehall, Inc., I find that the proposed parking garage in conjunction with other buildings which have been or will be constructed on the leasehold premises will fully satisfy the improvement requirements contained in Paragraphs I and II of the Lease Contract, as amended, except that the parties are uncertain as to whether the less-than-ceiling-high outer retaining walls on each floor of the proposed parking garage would constitute "walls" within the meaning of that term as used in Paragraph I.
The meaning of the term "wall" is quite broad and somewhat imprecise. The term is commonly defined as an "erection of stone, brick, or other material, raised to some height, and intended for purposes of security or inclosure." Black, Law Dictionary 1752 (4th ed. 1951). See also; Webster's New International Dictionary 2867 (2d ed. 1945); 92 C.J.S., Wall; and 44A Words and Phrases, Wall.
In view of the commonly accepted definition of the term "wall," it is my opinion that the term is sufficiently broad to encompass the rataining walls proposed by the Lessee as herein described.
May 31, 1965
CIGARETTE TAX
This is in reply to your letter concerning the liability of Mr. D-in Blue Ridge, Georgia, under the cigarette tax act now in effect. Mr. D-- is a distributor of cigarettes under the present Georgia cigarette tax act and he obtains unstamped cigarettes from the manufacturer, affixes the Georgia cigarette tax stamp to the individual packages, and then sells them to dealers throughout his trade area. The Department of Revenue audited the account of Mr. D-on or about May 19, 1965, and discovered a shortage in his inventory as compared to his tax stamp purchases and required that he pay $129.60, which is the equivalent amount for stamps on two cases and forty-two cartions of cigarettes. Mr. D-- states now that the

780
shortage was due to a theft of the cigarettes and that he reported the theft to local law enforcement personnel.
Georgia Code Ann. 92~2212, provides that a licensed distributor such as Mr. D-- must purchase stamps sufficient to cover his receipts and sales or other disposition of other unstamped cigars and cigarettes. Section 92-2201 (h) defines "sale" as follows:
"The word 'sale' shall mean any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution in any manner, or by any means whatsoever." (Emphasis supplied)
The cigarette tax act apparently then requires that the cigarettes in question be stamped even though they are stolen and lost.
This is not an uncommon occurrence and has been a problem of many distributors throughout the State of Georgia. Apparently thieves find cigarettes to be an item easily disposed of and therefore a desirable theft item. We have been advised by the Department of Revenue that most distributors insure their inventory, and their loss is then reimbursed by the insurance companies. We have been assured that Mr. D-- is receiving the same treatment afforded to other tax payers in similar situations.
The tax treatment of the theft of cigarettes should not in any way be a reflection on Mr. D-- or in any manner be construed as an illegal or improper action. Mr. D-- has a fine reputation with the Department of Revenue and they do not suspect or accuse him of any improper conduct in the handling of his affairs.
June 1, 1965
CORONERS
You requested our opinion concerning the fees due to coroners in certain situations.
Section 21-105 of the Georgia Code Annotated provides that coroners shall receive fees of $25.00 for summoning an inquest and returning an inquisition, and $15.00 for furnishing coffin and burial expenses.
Section 21-206 provides that coroners shall be entitled to an "investigation fee of $25.00 where no jury is impaneled and a fee of $25.00 where a jury is impaneled."
With those provisions in mind, it would appear that where a coroner is called to investigate a death and there is no necessity for an inquest, the coroner is due an "investigation fee" of $25.00 when he has been called under circumstances covered in Georgia Code Ann. 21-205.
Where it is determined that an inquest is to be held, and the inquest is in fact held, it would appear that the $25.00 to which the coroner is entitled is the fee for the inquest and that he is not also entitled to an investigation fee of $25.00.
Of course, if the coroner is on salary, he is entitled to neither fee.

781
June 2, 1965
OPINION TO THE GOVERNOR OF GEORGIA
Thank you for your recent letter stating that a vacancy has occurred in the membership of the Board of Commissioners of Roads and Revenues of Miller County, and inquiring as to whether such vacancy should be filled by the vote of the remaining members of the Board or by the vote of the people in a special election.
The present Board was created by an Act, approved August 22, 1905 (Georgia Laws 1905, pp. 569-72), which provides in 6 (p. 570) that any vacancy occuring in the membership of the Board shall be filled by the vote of the remaining members. While the 1905 Act has been amended on numerous occasions, it does not appear that the vacancy-filling procedure prescribed by 6 has been repealed. Therefore, it is my opinion that the vacancy should be filled by the Board pursuant to 6.
It should be noted that the general law governing the filling of a vacancy occurring in the office of commissioner of roads and revenues in any county is not here involved because its application is limited to those instances where the local act creating the board makes no provision for the filling of such a vacancy. See Georgia Code Ann. 23-801, as amended by Georgia Laws 1947, p. 173.
June 2, 1965
OPINION TO THE GOVERNOR OF GEORGIA
Thank you for your recent letter inquiring as to whether you should commission two persons returned as elected to membership on the Crisp County Board of Education in an election held on May 4, 1965, when the local law pertaining to such Board provided for the election to be held on April 6, 1965. You further stated that the Ordinary of the County advised you that the election was held late through inadvertence.
The Crisp County Board of Education as it presently exists is the offspring of the 1957 merger of the independent school system of the City of Cordele and the school districts in Crisp County (lying outside of the corporate limits of Cordele) into the county-wide Crisp County School System. This merger was consummated pursuant to, and the Board and School System are governed by, an Amendment to the Georgia Constitution ratified by the people in the General Election held on November 6, 1956,1 and an enabling Act approved February 11, 1957 (Georgia Laws 1957, pp. 2066-83).
The Constitutional Amendment and Act provide that the Board shall consist of six members and that at the initial election two mem-
1. For text of Amendment, see Ga. Laws 1956, pp. 111-116.

782
bers shall be elected for a two-year term, two for a four-year term, and two for a six-year term, and that their successors (other than for an unexpired term) shall be elected for six-year terms. The Amendment does not undertake to fix the dates of election, but leaves this matter to statutory determination.
Section 5 of the Act (p. 2069) directed the Ordinary to call and hold the initial election within a prescribed time and provided that subsequent elections would be held on the first Tuesday in April in each odd-numbered year beginning with 1959. Under the Act, the term of each member begins on July 1 of the year in which elected.
Under the election schedule established by the Act, the successors to the two members elected initially for a two-year term were required to be elected on April 6, 1965. However, this election date was superseded by 34-802 of the Georgia Election Code, approved June 24, 1964 (Georgia Laws 1964, Extra. Sess., p. 26, 79), as amended by an Act approved March 12, 1965 (Georgia Laws 1965, pp. 203-04), which provides that county officers2 "shall be elected in the November election3 next preceding the expiration of the term of office." The members of the Crisp County Board of Education are county officers and, therefore, the two members scheduled to take office on July 1, 1965, should have been elected in the General Election held on November 3, 1964.
Obviously, the purported election of the two members of the Board on May 4, 1965, for a six-year term to begin on July 1, 1965, was without statutory authority. Hence, does this purported election have any legal efficacy?
The general rule is that an election must be held on the day prescribed by law and that an election held on any other day is void. 29 C.J.S. Elections, 76 and 77; 18 AM. JUR. Elections, 112; and 121 A.L.R. 987. While some courts appear to be somewhat lenient in the application of this rule, the Supreme Court of Georgia has applied it with rigidity in the case of Davis v. Page 217 Ga. 751 (1962).
In Davis, a superior court judge postponed the annual election of the mayor and aldermen of a municipality from December 16, 1961, the time fixed by the municipal charter, to December 30, 1961, so as to permit the selection of poll officers by the mayor and aldermen convened in special session. Irrespective of the fact that the election was held on the date fixed by court order, the Supreme Court reversed and decided "that an election is absolutely void when not held at the proper time and place by persons qualified to hold it." Id. at 752. While this decision was supported in part by a reference to old Code 34-3101, which was repealed by 34-2001 (a) of the Georgia Election Code (Georgia Laws 1964 Extra. Sess., p. 26, 197),
2. Other than those county commissioners temporarily exempted by the Amendment to Georgia Code Ann. 34-802.
3. For definition of "November election," see 34-103(m) of the Georgia Election Code (Georgia Laws 1964, Extra Sess., p. 26, 29).

783
there is no reason to believe that the Court would reach a different conclusion in this case.
In view of these authorities which indicate that the election held on May 4, 1965, is void, it is my opinion that you, as Governor, are entitled to refuse to commission those returned as elected.
June 4, 1965
OPINION TO THE STATE AUDITOR
In your letter you stated that, during a recent meeting of the Teachers Retirement System, a question of the status of benefits to teachers under H. B. 496 (Georgia Laws 1965, p. 208), approved March 12, 1965, arose on which the Board would like my opinion. The specific question is whether H. B. 496 as drawn is self-executing, or whether it is non-effective until specific action is taken thereon by the Board of Trustees relating to the establishment of a $5.00 floor for teachers who retired prior to the institution of the formula plan.
Section 1 of H.B. 496 amends Section 5 (2) (c) of the Teachers Retirement Act by inserting the figure 63 and adding certain verbage, so that when amended, section 5 (2) (c) reads:
" (c) In the case of the retirement of any member prior to his attainment of the age of 63 years, the service allowance above described shall be reduced by one twelfth of three per cent for each month by which his age at the time of retirement is below 63 years. The aforesaid reduction shall not apply in calculating the service allowance for disability retirement or death. Any retirement benefits or allowances provided or authorized by this Act shall not increase the employer contributions beyond the percentage rate of 8.29% of teachers' salaries."
The Act then further provides in Section 2:
"No funds shall be expended or paid under the provisions of this Act until such time as H. B. 1115 of the 1962 Session, as changed by S. B. 164 of the 1963 Session, relative to providing a minimum floor of $5.00 for each year of service up to forty years for those members of the Teachers Retirement System who retired on or before July 1, 1961 has been implemented to at least such $5.00 amount."
The Act then provides in 3 that it shall become effective on July 1, 1965.
Because of the effective date, no teacher may retire at age 63 without reductions as provided in the Act before July 1, 1965. Because of the limitations contained in 2 no teacher may, after July 1, 1965 retire and receive funds for full retirement at age 63 unless or until a $5.00 floor as provided in another section of the Act is being paid to

784
all retired teachers having retired prior to institution of the formula plan.
The floor being mentioned is a minimum payment for each year of service as provided by H.B. 1115 of the 1962 Session. That Act provided:
"The Board of Trustees shall after an actuarial investigation into the benefit structure of the system study the benefits being paid to the retired members prior to the effective date of this bill with authority to increase their retirement allowances in keeping with actuarial soundness of the system. The Board of Trustees is hereby required to make available semiannually 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 $5.00 for each year of service up to forty years is reached."
That Bill first granted authority to and then required of the Board of Trustees action on their part. That Bill was not self-executing. It is my understanding the present floor is below $5.00. Some additional action must be taken by the Board to increase this floor to $5.00, as it would not be increased automatically under the terms of the 1962 Act. In the absence of any action by the Board, the floor would remain at whatever lesser figure has been previously established.
Should the Board not take any action and the floor not be increased to $5.00, then no funds could be expended to fully implement the reduced age of retirement under 1 of H. B. 496, passed this year. It is therefore my opinion the bill is not self-executing but that the Board must specifically authorize and implement the $5.00 floor to teachers retired on or before July 1, 1961 before any funds might be paid under 1 of the Bill to teachers seeking full retirement at age 63.
June 7, 1965
OPINION TO THE DEPARTMENT OF MINES, MINING AND GEOLOGY
This is to acknowledge receipt of your letter in which you request an opinion as to whether your department is subject to the provisions of the Administrative Procedure Act and if it is, what duties you are required to perform.
Under the Georgia Administrative Procedure Act, as amended, every State agency with some exceptions, is required to publish its rules. "Agency" is defined as follows:
"(a) 'Agency' means each state board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases except the General Assembly, the judiciary, the Governor, the

785
Board of Pardons and Paroles, the State Board of Probation, the Board of Bar Examiners, the Board of Corrections and its penal institutions, the State Board of Workmen's Compensation, the Public Service Commission, all Public Authorities, the State Personnel Board (Merit System), the State Supervisor of Purchases (Purchasing Department), the regulation of liquor and alcoholic beverages, or any school, college, hospital or other such educational eleemosynary or charitable institution, or any agency when its action is concerned with the military or naval affairs of this State."
An Administrative "Rule" is:
"each agency regulation, standard or statement or general applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency."
Therefore, it seems clear that the Department of Mines, Mining and Geology is subject to the Act. Your existing rules should be filed no later than July 21, 1965, in the office of the Secretary of State. Mr. Wade Mallard in that office can give you further information on this.
In 1959, all of the duties of the Oil and Gas Commission were transferred to the Department of Mines, Mining and Geology. Georgia Laws 1959, p. 73. Also, the position of Director of Production and Conservation under the old Oil and Gas Commission Act (Georgia Laws 1945, p. 366) is now to be vested in an employee of your Department, who will be called the Secretary of Production and Conservation.
Finally, your duties in connection with the Underground Gas Storage Act will be quite extensive.
Under Georgia Code Ann. 93-806, the Director of the Department of Mines, Mining and Geology will be required to investigate proposed sites for storing natural gas, and file a written report with the Public Service Commission prior to the date of the Public Service Commission's hearing in the matter. The factors involved in your investigation are set out in Georgia Code Ann. 93-807.
Under Georgia Code Ann. 93-809, the Director is required to adopt rules and regulations prescribing minimum standards necessary for the health and safety of the public within 120 days after the effective date of the law. That effective date was March 31, 1965.
Under Georgia Code Ann. 93-809 (b) the Director is required to inspect the sites of underground reservoirs and other facilities once each year. A written report of such investigation and examination must be filed with the Director and the Public Service Commission.
In connection with 93-809, as set out above, the Director has the right to commence a civil action in superior court for the enforcement of the rules and regulations.

786
June 8, 1965
OPINION TO THE SECRETARY OF STATE
Thank you for your recent letter requesting my opinion regarding the interpretation of 5 and 6 of the Georgia Administrative Procedure Act, approved March 10, 1964 (Georgia Laws 1964, p. 338; Georgia Code Ann., Ch. 3A-1), as amended by an Act approved March 26, 1965 (Georgia Laws 1965, p. 283), regarding the filing of copies of State agency rules with you.
Specifically, you point out that these sections provide that a copy of "each" rule filed with you must contain a citation of the authority pursuant to which it was adopted and an endorsement as to the time of filing. You further explain that it is the practice of many state agencies, which have adopted lengthy regulatory compilations, to divide them into numerous short paragraphs and to individually designate and number each paragraph as a "rule" so as to permit easy identification and reference. You inquire as to whether it is permissible for a single citation of authority and a single filing endorsement to be used for a group of these paragraphs which is adopted under the same statutory authorization and filed simultaneously.
In my opinion, such a practice is permissible and is in full accord with the requirements of the Administrative Procedure Act. The term "Rule" is defined in 2 (f) .of the Act to mean "each agency regulation, standard or statement of general applicability that implements, interprets or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency...." This definition is quite broad and can be applied as easily to a group of paragraphs such as you mention, as it can to a single paragraph of the group.
Obviously, the purpose of requiring copies of rules to be accompanied by a citation of authority is to inform interested parties as to the statutory authority relied upon by the rule making agency. And the purpose of requiring a filing endorsement on each copy is to fix the date upon which the rule becomes effective. Both of these purposes are accomplished by placing a single citation of authority and a single filing endorsement upon a regulatory compilation adopted by an agency under the same statutory authority and filed simultaneously.
A contrary construction would be unreasonable and burdensome because it would require a citation of authority and a filing endorsement for each paragraph of such a compilation-no matter how lengthy it might be. I do not believe such a construction would be sound because statutes are always given a reasonable intendment by the courts where possible.New Amsterdam Casualty Co. v. Free'land 216 Ga. 491, 495 (1960) ; Drake v. Thyer Manufacturing Corporation 105 Ga. App. 20, 22 (1961) ; Cohen v. The State 101 Ga. App. 23, 27 (1960) ; Premium Distributing Company, Inc. v. State of Georgia 89 Ga. App. 222, 231 (1953); Wharton v. The State 67 Ga. App. 545, 549 (1942).

787
June 10, 1965
OPINION TO THE GAME AND FISH COMMISSION
This will acknowledge receipt of your request for an opinion as to whether or not the State Game and Fish Commission can appoint Deputy Game Wardens, or Rangers.
In 1931, the General Assembly enacted a statute providing for the appointment of Deputy Game Wardens, to serve without compensation. Georgia Laws 1931, pp. 173, 174. The number of these Deputies was limited to thirty. Georgia Laws 1931, pp. 137, 177. In 1933, both of the above provisions of law became respectively, 45-124 and 45-125 of the Georgia Code Annotated.
The Deputies appointed pursuant to those Code sections possessed all of the powers of full-time Game Wardens, including that of making arrest. In the case of Hanna v. Estridge, 59 Ga. App. 182 (1938), a suit was filed against a Deputy Game Warden for the alleged unlawful killing of a person caught violating the game laws. The Court of Appeals stated, at page 184, that:
"The evidence shows that the employee, Hawthorne, was deputized as an officer of the law by the commissioner of game and fish. He was acting in such capacity without pay at the time of the homicide. The law authorizes such an appointment. Code, 45-124. As such he had a right to arrest a person violating the State game laws." (Emphasis added)
In 1955, the General Assembly completely revised the laws governing the State Game and Fish Commission. Georgia Laws 1955, pp. 483, 550. In 13 of that Act, the Legislature provided for a uniformed division of personnel known as wildlife rangers. In 18 of the Act the duties and powers of wildlife rangers, including the power to make arrests are set out. The sections of the Code of 1933 dealing with Deputy Wardens were deleted from the 1955 Act.. And, in 118 (1) of the Act of 1955, Title 45 of the Code of 1933, relating to game and fish laws, was specifically repealed.
It is my opinion, therefore, that the State Game and Fish Commission does not have the authority to appoint Deputy Game Wardens or Deputy Wildlife Rangers.
June 11, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter, wherein you ask whether the State Board of Education may provide insurance for textbooks purchased by and owned by local school systems. In my opinion, the State Board .of Education cannot legally insure textbooks owned by local boards of education.

788
In your letter you refer to the fact that the past practice regarding the purchase of textbooks for use in the public schools has been for a local unit to order the same through the Department of Education which then proceeded to purchase the same from the funds budgeted for the particular local school system's share of the total textbook budget. I note that this practice appears to have been carried out under the old minimum foundation program which provided that the State Board of Education should annually determine the funds needed to provide the public schools with free textbooks. See Georgia Code Ann. 32-624, (now repealed), but nowhere required actual disbursement of such budgeted funds to the local school systems. The aforesaid practice would appear to be fully authorized by the provisions of Georgia Code Ann. Chapter 32-7 [Textbooks in Public Schools] and particularly 32-713, 32-720 and 32-723 of said Chapter.
The new Minimum Foundation Program of Education Act, however, more clearly contemplates the disbursement of textbook funds to, and the purchase of textbooks by the local units rather than the State. Georgia Code Ann. 32-614 (1964 Supplement) provides in part:
"The amount of funds needed by a local unitl of administration for maintenance, repair and purchase of free textbooks shall be determined .... The State Board is authorized to make additional allotments of funds to local units to further assist local units in meeting the need for additional sets of textbooks due to increased enrollment...." (Emphasis added)
And as you note in your letter to the State Board of Education at its last meeting voted to disburse textbook funds to the local systems who would then purchase said textbooks themselves from the State approved listings.
Looking then to your specific question of whether or not the State Board of Education may continue to insure textbooks now that purch2.se is to be by and title to be in the local boards of education,2 it would seem that the proper starting point is the basic rule that the powers of public officers and boards are limited to those defined by law, Georgia Code Ann. 89-903 and that in the absence of an express, or at the very least of a necessarily implied grant of power to do so, public officers and boards cannot pay out public funds. See, e.g., Cole' v. Fos,te,r, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142 (1) (1933). I am unaware of any statute expressly authorizing the State Board of Education to insure textbooks against fire, theft etc. whether title is in the State Board of Education or
1. The language of the older provision was "the funds needed to provide the public schools of the State with free textbooks...."
2. You state that a reserve of approximately $95,000.00 is currently maintained in order to self-insure the textbooks owned by the State Board of Education and that this reserve has been used to replace books in the possession of local units which have been destroyed by fire.

789
whether it is in the local board of education. Where title is in the State Board, however, the weight of authority would seem to support the view that an implied authority to purchase insurance does exist as a necessary component of the power of general management and control over school property. See 47 AM. JUR. Schools 73; 100 A.L.R. 600, 602 "Insuring Public Property." See also Georgia Code Ann. 32-413 respecting the authority of State Board to manage property to which it has title. But I know of no authority which would permit the State Board of Education to insure textbooks which are owned by and subject to the exclusive management and control of the various local boards of education rather than of the State Board. I therefore conclude that the cost of insurance on such textbooks, if they are to be insured, must be borne by the local school systems which have title to the same and not by the State Board of Education.
June 11, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask whether it is legal for a county board of education to pay for classrooms from a bond issue if the classrooms are already under construction when the bond issue is passed. You state that several school systems have a need for additional classrooms prior to the opening of the 1965-66 school term and would like to begin construction of the classrooms during the summer even though the proposed bond issues are not intended to take place prior to next fall.
While commencing school construction which is intended to be financed through the sale of school bonds prior to voter approval and validation of the bond issue is questionable from a fiscal viewpoint (what happens if the voters fail to approve the issuance or if the issue is not validated?), it would not appear to be illegal.
Georgia Code Ann. 32-1403 provides in part:
"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 VII, Paragraphs I and II of the Constitution ... the election required shall be called and held in the manner prescribed by Chapter 87-2, and the bonds shall be validated in the manner provided by Chapter 87-3. . . ."
While Chapters 87-2 and 87-3 (relating to bond elections and the validation of bonds) require statements of the purposes for which the bonds are issued, and while it is well settled that the sale proceed cannot be diverted to any purpose other than those announced, see Walker v. Wheeler, 210 Ga. 432 (1954) ; Board of Education of Paulding County v. Gray, 203 Ga. 583 (2) (1948); 64 C.J.S. Municipal

790
Corporations 1934, with the answer to the legality of all expenditures from the funds raised from the bond depending upon the authority contained in the validation order of the court, see Ops. Att'y Gen. 109, 110 (1957). I know of no statutory provision in either these chapters or elsewhere in the Annotated Code of Georgia which would limit an otherwise valid bond issue for the purpose of school construction projects, to such projects as have not yet commenced at the time the bonds are voted upon, validated, or issued.
June 11, 1965
OPINION TO THE DEPARTMENT OF EDUCATION
This is in reply to your letter wherein you ask about the applicability of Georgia Laws 1965, pp. 118-19 to a committee of educators appointed by the State Board of Education for the purpose of studying textbooks and making recommendations to the State Board in connection with their possible selection by the latter body for use in the public schools of this State. You have a letter which contends that the committee's holding of meetings which are closed to the public is violative of the above cited statute and its general requirement that meetings of public boards be open to the public.
Georgia Laws 1965, pp. 118-19 is not applicable to meetings held by the advisory committee appointed by the State Board of Education to study textbooks and make recommendations to the State Board regarding their possible adoption for use in the public schools of this State.
The State Board of Education is authorized and empowered to prescribe by regulation the textbooks to be used in the public schools of this State, see Georgia Code Ann. 32-707, and is required to select a committee or committees of educators to examine textbooks and make recommendations thereon to the State Board of Education. Georgia Code Ann. 32-709. To my knowledge there is no statute which requires the State Board of Education to follow the recommendations of such committee and there appears to be no diminution whatsoever of its ultimate decisional authority in the matter.
Section 1 of Georgia Laws 1965, pp. 118-19 provides:
"All meetings of the governing bodies of all municipalities and counties in this State, boards of public instruction, and all other boards, bureaus, authorities or commissions in the State of Georgia, excepting grand juries, supported wholly or in part by public funds or expending public funds shall be public meetings. Provided, however, that before or after said public meeting said governing bodies, boards, bureaus, authorities or commissions may hold executive sessions privately but the ayes and nays of any balloting shall be recorded at the conclusion of said executive sessions."

791
Section 2 of the same Act makes any wilfull violation thereof a misdemeanor.
In my opinion it would seem clear beyond all doubt that an advisory committee, empowered only to make recommendations to a board, bureau, authority, commission or governing body is not in itself such a board, bureau, etc. to which the provisions of Georgia Laws 1965, pp. 118-19 would apply. This is especially true in view of the fact that being a criminal statute it must be construed strictly against the State and liberally in favor of any individual accused of having violated the same. E.g., Matthews v. Everett, 201 Ga. 730, 735 (1947).
June 11, 1965
GEORGIA PROFESSIONAL ASSOCIATION ACT
We are in receipt of your letter in which you requested an unofficial opinion concerning our interpretation of certain provisions of the Georgia Professional Association Act, Chapter 84-43 of the Georgia Code Annotated, as applied to medical doctors.
As you pointed out, Georgia Code Ann. 84-4303 and 84-4305 each provides that a Professional Association shall render only one type of professional service.
It is our opinion that the foregoing sections would allow medical doctors to form an Association even where there were specialists in different areas of the medical profession such as pediatrics, gynecology, general practice, etc., since all the doctors are practicing medicine and are governed by one Board of Medical Examiners. On the other hand, they could not be joined in a Professional Association by a dentist, for example, or some member of an entirely different profession than the medical profession.

INDEX

ACCESSORIES.
Drunken driver taken from scene before law enforcement officers can investigate, 473.
ACCOUNTANCY, STATE BOARD OF.
Accoutant-client relationship, extent of, 739.
ACCOUNTS AND ACCOUNTING.
Discount companies purchasing accounts, 162.
ACCOUNTANTS.
Accountant-client relationship, extent of, 739.
AD VALOREM TAXES.
Agricultural Commodity Commission for Peanuts, 390, 592.
Agricultural products stored under government programs, 238.
Banks, capital notes issued by, 395. Churches-
Motor vehicles owned by, 464. Church-
Recreation property, 52. Easements granted to utility com-
panies, where, 68. Fair market value, 113. Forestry Commission, lands leased
to, 188. Homestead exemptions, 733. Motor vehicles-
Paraplegics, owned by, 58. Under-returned, 113. Property subject to, 34. School purposes, valuations for, 69. Security deed holder, release of property for benefit of 110. Situs of personalty of members of armed forces, 364. United States property, where private property is physically located on, 109. Urban renewal authority, property acquired by, 652, 653. Wooded lands, valuation, 79.
ADJUTANT GENERAL. Airplane, purchase of, 178.

ADMINISTRATIVE PROCEDURE ACT. Rules, filing of, 786.
ADOPTION. Family and Children Services, Department of, through, 506.
AFFIDAVITS. Forms, 308.
AGRICULTURAL COMMODITY COMMISSION FOR PEANUTS. Ad valorem taxes, 390, 592.
AIR NATIONAL GUARD. Hatch Act, 61.
ALCOHOLIC CONTROL AGENTS. Arrest by, 37.
APPEARANCE BONDS. Corporation signing, 131.
ARREST. Alcoholic control agents, by, 37. Constables, by, 296.
ASSESSMENTS. Streets, for, State liability for, 744.
ATLANTA. Education board, emeritus officers, 417. Traffic court, cash bonds, 32.
ATLANTA ASSOCIATION FOR RETARDED CHILDREN. Purchase of supplies, 663.
ATTORNEYS AT LAW. Mentally ill persons, legal counsel for, 526. Municipal licenses, 381. Students representing indigents, 542.
AUDITOR, STATE. Budget Bureau, compensation for service on, 629.
AUDITS. School system of, funds for, 62. School superintendents, county, audit of books, 731.

794

AUDITS, DEPARTMENT OF. Administrative Procedure Act, applicability, 637.
BANKING, DEPARTMENT OF. Investments in bonds of public authorities, 29.
BANKS AND BANKING. Capital notes, ad valorem taxes, 395. Certified checks, stop payment, 161. Debt cancellation contracts, 457. Deposits in name of more than two persons, 351. Directors, vacancies, etc., 146, 195. Expanding operations, limitations, 235. Federal Reserve funds purchased from another bank, loans, 261. Investments, "tax equalization" loans, 572. Names of corporations, 239. Sales of interests in loans, restrictions, 300. Savings certificates, negotiability, 537. Superintendent of Banks, compensation, 336.
BARBERS, STATE BOARD OF. Certificate of registration, action where persons refused or neglected to obtain, 446. Teachers, qualifications, etc., 485.
BEER. County license for establishment within municipality, 451.
BIBLES. Schools, reading in, 263, 573.
BOATS.
Life preservers, regulations, 132.
BONDS.
Appearance bonds, corporation signing, 131.
Authorities, of, investments, 29. Cash bonds, generally, 32. Cognizance bond, release of naval
personnel upon, 645. Governor, payable to, authority to
institute action, 455.

BONDS-Cont'd. Industrial development, counties issuing for, 44. Probation board employees, etc., liabilities, 482. SchoolsApproval of voters, 769. Classrooms already under construction when bond issue passed, 789. Disbursement of funds procured through issuance of school bonds, 594. Surplus funds, 705. Validation of, attorneys for, 590.
BOWLING. Tax on bowling and bowling shoe rental, 48.
BROKERS. Fees, brokerage, limitation, 168.
BUDGET BUREAU. Administrative Procedure Act, applicability, 631.
BUFORD. City court sheriff, compensation, 611.
BUILDING AND LOAN ASSOCIATIONS. Investments by municipalities and other public corporations, 353. Recording tax, liability, 605.
BUILDING PERMITS. School Building Authority, for, 493.
CAPITAL PUNISHMENT. Press at executions, 346.
CEMETERIES. Contracts, insurance, 367.
CHARGE TO JURY Securities Act, 179.
CHATHAM COUNTY. Nursing Home Authority, sales and use taxes, 58.
CHATHAM-SAYANNAH DEFENSE COUNCIL. Political subdivision, as, for social security purposes, 328.

795

CHECKS. Certified, stop payment, 161.
CHICKEN HOUSES. Abatement as nuisance, 260.
CHILD-CARING INSTITUTIONS. Licenses, 362.
CHILD LABOR. Age, 22.
CHURCHES. Ad valorem taxes on motor vehicles owned by, 464. Public school graduation held in, 304. Recreation property, taxation, 52.
CIGARETTES. Sales to minors, 679. Taxation, 242, 779.
CITY COURTS. Soliictors also in General Assembly, 659.
CIVIL DEFENSE. Mining facilities, applicability of civil liability immunity act, 79.
CIVIL DEFENSE DIVISION. Merit system, 7.
CLAY. Mineral, as, 633.
CLAYTON COUNTY WATER AUTHORITY. Sales taxes, 412.
CLERKS OF COURTS. Comepensation to, 81. Fees, generally, 486.
COCKFIGHTING. Generally, 432.
COGNIZANCE BONDS. Naval personnel released upon, 645.
COMMERCE, DEPARTMENT OF. Federal government contracts, action required as to, when changed to Department of Industry and Trade, 57.

CONGRESSIONAL REAPPORTIONMENT ACT. Constitutionality of, 392.
CONSTABLES. Arrests by, 296.
CONSTITUTION OF STATE. Advertisement of new, 603. AmendmentsLocal, counting votes, 661. Proposed, status of, 144.
CONSTITUTION REVISION COMMISSION. Charters of corporations, 281. Eligibility to serve on, 130. Per diem to member drawing compensation from another branch of government, 635.
CONSTITUTIONAL LAW. Moral turpitude, 115.
CONTRACTS. Minors, by, 552.
CONVICTS. See Prisons and Prisoners. Bridge, labor on, 142. Private property, building driveway across, 200. Well, labor to replace, 189.
CORONERS. Fees, 780. Inquests held under what conditions, 157. Medical examiners attached to, 463.
CORPORATIONS. Charters, Constitutional Revision Commission, retention of provision, 281. Criminal appearance bonds, signing, 131. Dissolution, venue, 525. Taxation, professional associations, 84.
CORRECTIONS, STATE BOARD OF. See Prisons and Prisoners. Negligence on part of employee for which passenger-prisoner can recover damages, 741.

796

CORRECTIONS, STATE BD. OFCont'd. Utility services, agreements for, at maximum security prison, 651.
CORRECTIONS, DEPARTMENT OF
Costs and expenses in trial involving inmates, 743.
COSMETOLOGISTS. Examination, who may take, 250.
COSMETOLOGY. Schools, 289. Teachers, 184.
COSMETOLOGY, STATE BOARD OF Fiscal year limitations, 223.
COSTS. No bill returned, when, 609. Nolle prosequi cases, 609.
COTTON. Spray damaging neighbor's, 190.
COUNTIES. Beer license for establishment within municipality, 451. Borrowing money to build courthouse, 420. Education boardssee Educatrion, County Boarrd .of. Expenditures for, 492. Hospital authority, funds for nursing home proposed by, 415. Law books purchased for county law library, sales tax, 270. Planning commissions, contracts with, 273. Private driveways, repairing and maintaining, 466. Revenue bonds for industrial development, 44. School superintendent's office, expenditure of funds to equip, 669. Water system employee seeking office on county board of education, 438.
COUNTY COMMISSIONERS. General Assembly, seeking office in, 437. Resignation, modification where no successor, 254. Vacancy, filling, 781.

COUNTY MEDICAL EXAMINER. Osteopath as, 624.
COURTHOUSES. Borrowing money to build, 420.
CREDIT LIFE INSURANCE. Loans, obtained in connection with, policy writing fee, 428.
CREDIT UNIONS. State agency withholding payments on loans made to employees by, 416.
CRIMES. See Particularr Crimes.
CRIMINAL LAW. Appearance bonds, corporation signing, 131. Cognizance bonds, naval personnel released upon, 645. Drunken driver taken from scene before law enforcement officers can investigate, 473. Moral turpitude, 115, 302. Sentences, see .Sentence.
DAY CARE CENTERS Food Service Establishments Act, applicability of, 468. Licensing, 339.
DEAF, GEORGIA SCHOOL FOR Non-citizen teacher, employment of, 214.
DEEDS. Mentally ill persons, by, 381. State of Georiga accepting where reversionary clause, 755.
DEER. Weapons used for, 402.
DEFENSE, DEPARTMENT OF Employees participating in group health and hospitalization program where salaries paid by federal government, 619.
DEKALB COUNTY. School system audit, funds for, 62.
DEKALB JUNIOR COLLEGE Legal status, 269.

797

DENTAL EXAMINERS OF GEORGIA, BOARD OF. Joint secretary's duties as to, 182.
DEVELOPMENT AUTHORITY, GEORGIA. Intangible tax liability, 31.
DISCOUNT COMPANIES. Generally, 162.
DISPOSSESSORY WARRANTS. Constitutionality of law as to, 403.
DIVIDENDS. Insurance companies, limits, 205.
DIVORCE. Residence requirements, 33.
DRAG RACING. Track for, 133.
DRIVER'S LICENSES. Code sections taking precedence over court order, 476. Failure to surrender, 690. Judgments as to, effect of, 476. Reinstatement, 333. Restoration fee, 727. Retention pending hearings for revocation, 475. RevocationOut-of-State conviction, for, 524. Recorder's court, for conviction of driving under the influence in, 541.
DRUGS. Dangerous drugs, refilling prescriptions, 45. Machine dispensers, 555. State purchasing foreign-made, 55.
DRUNKEN DRIVING. Blood testing facilities, 206.
EASEMENTS State property, over, 699.
ECONOMIC POISONS ACT Electric ozone generator registered under, 543.
EDUCATION. Vocational, loans of equipment, etc. 154.

EDUCATION BOARD OF CITY OF ATLANTA. Emeritus officers, 417.
EDUCATION, COUNTY BOARDS OF
Baseball field on school property, expenditure of funds for, 547.
Bond issueClassrooms already under construction when bond issue passed, 789. Surplus funds of, 705.
Chairman, motions and voting by, 568.
Commissions to members where election held late, 781.
County commissioners buying furniture for, 492.
County employee seeking office on, 438.
Deed of revenue-producing property to citizens without charge, 628.
Elections, 310. Employee's contract for longer than
one year, 80. General Assembly, member serving
in, 442. Leases of property no longer needed
as school site, 111. Liability of members for injuries
received by student on safety patrol, 423. Married studentsPolicies as to, 708. Suspending, 276. Notice of appointment of member, 107. Present board binding future board, 488. Public, meetings open to, 190. Savings and loan associations, funds put into, 613. School buses, lease of, 671. Sick leave expenses, 766. Term expiration where nobody runs for vacancy, 467. Tuition from nonresidents, charging, 737. Workmen's compensation premiums, 760.
EDUCATION, STATE BOARD OF
Constitutionality of resolution in-

798

EDUCATION, STATE BD. OFCont'd. structing discontinuance of collection of certain overpayments to county board, 721. Educational television contracts, 600. Employees drawing salaries while enaged in advance studies and temporarily removed, 697. Grants to employees to assist in advanced studies, 758. Insurance against ice damage to educational television station, 404. Long-term contracts, 221. Surplus property agency, authority of, 625. Textbooks, insurance on, 787.
EDUCATION, STATE DEPARTMENT OF. Audio-Visual Library, funds for purchases for, 612. Credit union, withholding payments on loans made to employees by, 416. Office space costs, federal matching, 773. School bus transportation, state aid, 17. Textbooks, committee studying and making recommendations as to, holding closed m!!etings, 790. Vocational Rehabilitation Division grants to private non-profit agencies, 638.
EDUCATIONAL TELEVISION STATION. Insurance, 404.
ELECTIONS. Candidates, qualification and fees, 253. Education boards, county, 310. Registration of votersSegregation of lists, 146. Special election deadline, 729. Special elections, 154. Voter registration places, establishment of additional, 125.
ELECTRIC OZONE GENERATOR. Registration, 543.

EMERITUS OFFICERS. Constitutionality of local law as to, 417. Law as to, constitutionality of, 417, 722. Public Service Commission, 625. Solicitors general, 437, 439.
EMPLOYEES OF STATE. Appeals of dismissals, 562. Pre-employment physical examinations, 499, 598, 678.
EMPLOYEE'S RETIREMENT SYSTEM. Actuarial tables, 1. Application for loan secured by leasehold interest in realty, 385. Beneficiary, where guardianship over, 720. Chatham-Savannah Defense Council as political subdivision for social security purposes, 328. Contributions where dismissal and subsequent reinstatement of employee, 762. Crime Laboratory employees, 83. Modification for purpose of covering sheriff and employees, 640. Payment of benefits during period of employment, 181. Superior court judges emeritus, 211.
EMPLOYMENT AGENCIES. Officers, change of, 299.
ETOWAH MOUNDS AND MUSEUM. Competition, 166.
EUGENIC STERILIZATION. Generally, 483.
EXAMINING BOARDS, JOINT SECRETARY OF.
Dental examiners, duties as to, 182.
FAMILY AND CHILDREN SERVICES, COUNTY BOARDS OF. Appointments to, 198, 256.
FAMILY AND CHILDREN SERVICES, COUNTY DEPARTMENTS OF.
Juvenile courts, cooperation with, 548.

799

FAMILY AND CHILDREN'S SERVICES, DEPARTMENT OF. Adoption of children, 506. Advisory council, juvenile and superior court judges on, 320. "BEES," legality of project, 345. Check issued by, misappropriation of, 686. Grants to private school or agencies by, 465. Children and Youth Division Training schools, admission to and discharge from, 476. Custody of child, 247. Foster homes, 539. "Goodwill Home," licensing of, 362. Merger of services across county lines, furnishing expenses as incentive to, 327. Office of Economic Opportunity established within Department receiving federal funds, 742. Reimbursement from estate of child of deceased recipient of welfare benefits, 124. Welfare Advisory Board, per diem allowance, 120.
FERTILIZER. Inspection fees where sales to federal government, 295.
FIERI FACIAS. Public utility, against, 348.
FIRE MARSHAL CAMP, JUNIOR. Legality of expenditure for, 446.
FIRE MARSHAL, STATE. Investigations by, 349.
FIREARMS. Bullet removed from victim, possession of, 196. Game and Fish Commission regulations, 237. Motor vehicles, in, 496. Sales, licenses, 74, 84, 95. Transportation, 194.
FIREARMS DEALERS. Licenses, 764.
FIREMEN. Volunteer, liability for injuries to, 754.

FISH AND FISHING. Licenses, non resident, 636. Private pond, 197.
FLINT RIVER. Water uses from, 748.
FOOD SERVICE ESTABLISHMENTS ACT. Day care centers, applicability to, 468.
FOREST RESEARCH COUNCIL, GEORGIA. Administrative Procedure Act, applicability, 772.
FORESTERS, STATE BOARD OF REGISTRATION FOR. Eligibility for registration, 453.
FORESTRY COMMISSION, GEORGIA. Ad valorem taxes on lands leased to, 188. Administrative Procedure Act, applicability of, 657. Ambulance type vehicle from federal government, transfer without exchange of funds, 297. Contract with corporation where stockholder is member of, 245. Uniforms for personnel, purchase of, 398. Vehicle purchase for, 117.
FOSTER HOMES Family and Children Services Department, used by, 539.
FRATERNAL BENEFIT SOCIETIES. Exemptions from regulation, 545.
GAMBLING. Slot machines, 306.
GAMBLING EQUIPMENT. Manufacture in this State, 319.
GAME AND FISH COMMISSION, STATE. Contract with business concern who has officer or relative of officer in, 278, 283. Deputy game wardens or rangers, appointment of, 787.

800

GAMES AND FISH COMM.-Cont'd.
DirectorMerit system, 395. Salary during emergency appointment, 294.
Open records law, 242. Regulations, notice, 709. Rules and regulations as to fire-
arms and alcoholic beverages, 237. Stocking, breeding, fertilizing, etc., 554. Uniforms for personnel, 686.
GENERAL ASSEMBLY
Adjournment, bills passed after time for, 392.
City court solicitors also holding office in, 659.
Constitutional amendments, proposed, powers as to, 144.
County commissioner seeking office in, 437.
Education board member serving in, 442.
Governor's Committee on Interstate Cooperation, expenses incurred by member of General Assembly appointed to, 125.
GEORGIA BUREAU OF INVESTIGATION.
Civilian status for agents, 54. Governor's authority as to, 532. Slot machine destruction, 726. Superior court judges, assisting, 38,
42.
GEORGIA INSTITUTE OF TECHNOLOGY. Contract obligations, 226. Peters Park property, 158. Property damage waiver in connection with nuclear equipment, 699. Water Resources Research Act, receiving grants relative to, 648.
GOOD SAMARITAN LAWS. Generally, 725.
GOVERNOR. Bonds payable to, authority to institute actions, 455. Commissions issuance where election held late, 781.

GOVERNOR-Cont'd. Georgia Bureau of Investigation, authority as to, 532.
GOVERNOR'S COMMISSION FOR EFFICIENCY AND IMPROVEMENT IN GOVERNMENT. Costs, 523.
GRACEWOOD STATE SCHOOL AND HOSPITAL. Residence requirements for admission, 375.
GRAND JURIES. Inspections by, 361.
GUARDIANS. Generally, 378. Milledgeville State Hospital, for persons at, 330.
HABEAS CORPUS. Costs-Constitutionality of resolution as to, 724. Generally, 450.
HATCH ACT. Air National Guard technicians, 61. Education board, civil service employee as member of, 99.
HEALTH CODE. Records, disclosure of, 534. Sanity, restoration to, 646.
HEALTH, COUNTY BOARDS OF Sanitation regulations, 347.
HEALTH PROFESSION LOAN FUND. Minors, contracts by, 552.
HEALTH, STATE BOARD OF. Collection of monies due from patients, 616. Rules and regulations issued prior to new Code, effect of, 553. Secretarial help, supplies, etc., procedure for securing, 741. Secretary for, 316. Water treatment, pollution, etc., powers as duties as to, 587.

801

HEALTH, STATE DEPARTMENT OF PUBLIC.
Community mental health centers and mental retardation facilities, supervision of plan for construction of, 311.
Elections, duties, etc. under 1964 law, 432.
Funds for training personnel, 8. Poultry houses, remedies as to, 481. Vital record data system, partici-
pation in project relating to, 599. Water quality control, rules and
regulation as to, 617.

HIGHWAY BOARD, STATE.
Bids, 578. Compensation and expenses
able to members, 139. Personnel employment, 118.

pay-

HIGHWAY DEPARTMENT, STATE.
Access changed or reduced, liability where, 521.
Administrative Procedure Act, applicability of, 766.
Bids, 578. Catoosa County, property in, claim,
177. Compromise settlement as to tort
claim, 325. Grants to municipalities, purposes,
147. Hospital parking areas and drive-
ways where hospital constructed with aid of federal grants, 275. Maximum weight and length limitations, 408. Railroad track relocation, 684. Stone mountain Memorial Association, contract with, 86. Title to rights of way, 530. Western Union facilities, costs of adjusting where necessary, 711.

HISTORICAL COMMISSION, GEORGIA.
Etowah Mounds and Museum, competition, 166.

HOGS.
Keeping in unincorporated villages, 190.

HOMESTEAD EXEMPTIONS. Increase for certain persons 65 years of age or older, 749. Municipal ad valorem taxes, 733. Raising, 142. Real estate given as security, where, 272. Residence requirements, 153. Two counties, where land is in, 134.
HOSPITAL AUTHORITIES. Funds for nursing home proposed by county authority, 415. Sale of land by, 676.
HOSPITAL SERVICE CORPORATIONS. Charter revival, 388.
HOSPITALS. Records, retention, 602, 642.
HUNTING. Deer, weapons for, 402. Sunday, on, bow and arrow, 624.
INCOME TAXES. Deductibility of contributions to self-employed individual's retirement program, 730. Refunds where change from joint to separate returns by man and wife, 589.
INDUSTRIAL DEVELOPMENT. Counties issuing bonds for, 44.
lNDUSTRIAL LOAN ACT. Insurance required of borrower under, 131. Loan limitations, 255. Non-recording insurance premiums, ceiling on, 335. Place of making loan under, 716.
INDUSTRIAL LOAN COMMISSIONER. Licenses, authority as to, 13.
INDUSTRY AND TRADE, DEPARTMENT OF. Cuff-links and key-rings given to representatives of industries, 558. Director, augumentation of salary from private organizations, 230.

802

INDUSTRY AND TRADE, DEPT. OF-Cont'd. Federal government contracts, action required when changed from Department of Commerce, 57. Highway welcome signs, contract for installation of, 280. Records inspection by members of press and others, 620.
INFANTS Cigarette sales to, 679. Contracts by, 552. Labor, 22.
INQUESTS. Conditions under which held, 157.
INSANE PERSONS. See Mentally Ill Pers,ons. Restoration to sanity, 646, 682.
INSURANCE. Agents, court bonds, lawyer empowered to execute, 133. Group, directors, inclusion of, 663. Insurable interest, 469. Resolutions delivered with policies. 304. Retaliatory statute, tax abatement, 138.
INSURANCE COMMISSION. Determining issues presented by claim arising under insurance contract, 285.
INSURERS. Agent retaining receipt forms after termination of authority, 421. Alabama corporation, certificate of authority to, 11. Capital stock paid in or subscribed to do business, amount necessary, 453. Certificate of authority, National Investors Life Insurance Company, 66. Charters, 618, 675. Dividends, limits, 205. Investments, 284, 313. Mergers, 19, 668. Municipality collecting premium taxes, 673. Premium taxes, municipal, 389. Resolutions delivered with policies, 304.

INSURERS-Cont'd. Surplus, expendable, 216. Title, writing other classes of insurance ,334.
INTANGIBLES TAXES. Bonds held by nonresidents, 582. Development Authority liability, 31. Exemptions, 110. Life estate in stock in foreign corporation where remainderman is resident of Georgia, 49. Long term notes secured by real estate, 96, 511, 654. Missionaries out of country, 114. Mortgage credits, money paid to lender as, 123. New York City Employees' Retirement System, 585. Notes, additional tax where modification, 195. Real estate given as security, 96, 272, 511, 654. Residence, 200. Savings and loan associations, 51. Situs of moneys held in trust by lending institutions, 271. Waiver of penalty, 46.
INTERSTATE COOPERATION, GOVERNOR'S COMMITTEE ON. Expenses of members, 125.
INTOXICATING LIQUORS. Application for permits, confidential nature, 171. Dry counties, 306. Excise stamps, 377. Game and Fish Commission regulations, 237. Manufacture of, generally, 149. Materials for making, construction of law as to, 449. Mixed drinks, constitutionality of law as to, 386. Seizure of vehicles, fees, 241. Taxation, 360. Vehicles transporting nontax-paid, condemnation of, 305. WinesDomestic, 138. Industrial purposes, sale for, 158.
INTOXICATION. Blood testing facilities, 206.

803

INTOXICATION-Cont'd. Drunken driver taken from scene before law enforcement officers can investigate, 473.
INVESTIGATIONS. Fire marshal, by, 349.
INVESTMENTS. Authority bonds, in, 29.
JEKYLL ISLAND STATE PARK AUTHORITY. Airport, authority to construct and operate, 671. Sales taxes, 745. Taxability of sales of tangible personal P.roperty to, 287. Water sales, taxability, 294.
JUNIOR FIRE MARSHAL CAMP. Legality of expenditure for, 446.
JUNIOR COLLEGE ACT. Constitutionality of, 100.
JURY. Charge to, Securities Act, 179.
JUSTICES OF THE PEACE. Commission, issuance of, 651. Marriage ceremonies outside district, 329. Sheriff's deputy serving as exofficio j.p., 621. Warrants, issuing when also sheriff, 6.
JUVENILE COURTS. Family and Children Services Departments, cooperation with, 548. Jurisdiction relative to superior courts, 690.

LAURENS COUNTY. Health Board powers as to sanitation, 347.
LIBERTY COUNTY INDUSTRIAL AUTHORITY. Constitutionality of law, 383.
LIBRARY BOARDS. Title to real property, holding, 137.
LICENSES AND LICENSE TAXES. Beer establishment within municipality, county tax or license on, 451. Child-caring institutions, 362. Daycare centers, 339. Firearms dealers, 764. Fishing, nonresidents, 636. Gun sales, 74, 84, 95. Industrial Loan Commissioner, 13. Lawyers, municipalities requiring of, 381. MarriageFees, 695. Generally, 771. Pregnancy, proof of, 727. Sunday, issuance on, 644. Medicine, to practice, 414. Municipal license for out-of-State grower selling products in Georgia city, 208. Osteopaths, 17.
LIENS.
Materialmen's, where federal funds involved in construction, 662.
Priorities, 337.
LIFE INSURANCE.
Cemetery contracts, 367. Gifts of life insurance as adver-
tising devices, 435.

KENNEDY, HENRY C. Compensation to, 81.

LIFE PRESERVERS. Boats, on, regulations, 132.

LABOR. Child Labor, 22. Teachers, collective bargaining and striking, 524.
LAKE LANIER ISLANDS DEVELOPMENT AUTHORITY. Lands leased from federal government, funds used on, 71.

LOANS. Credit life insurance in connection with, policy writing fee, 428.
LOYALTY OATHS. Teachers, 676.
MACON, CITY OF. Population, 163.

804

MARRIAGE. Justices of the peace, by, outside district, 329. LicensesFees, 695. Generally, 771. Pregnancy, proof of, 623, 727. Sunday, issuance on, 644. Requirements for, 365.
MATERIALMEN'S LIENS. Federal funds involved in construction, where, 662.
MEDICAL EDUCATION BOARD, STATE. Checks, signature device, 592.
MEDICAL EXAMINERS. Coroner's office, attached to, 463.
MENTAL HEALTH FACILITIES. Local, supervision of construction, 311.
MENTALLY ILL PERSONS. Attorney appointed by court of ordinary, 730. Deeds by, 381. Legal counsel for, 526. Restoration to sanity, 646, 682.
MERIT SYSTEM FOR DEPARTMENTS. Appeals of dismissals, 218. Civil defense employees, 7. Game and Fish Commission Director, 395. Part-time employee eligibility for insurance plan, 219. Pre-employment physical examinations, 499, 598.
MILITARY PERSONNEL. Residence of children of, 599.
MILITARY SERVICE. Residence when in, 373.
MILITIA DISTRICTS. Ordinaries' power as to, 339.
MILLEDGEVILLE STATE HOSPITAL. Admission to, 700. Guardian for persons in, 320.

MINES, MINING AND GEOLOGY, DEPARTMENT OF. Administrative Procedure Act, applicability of, 784.
MINIMUM FOUNDATION PROGRAM. Constitutionality of law, 84. Vocational-technical students included in computation of daily attendance, 775.
MINORS. See Infants. Contracts by, 552.
MISDEMEANOR SENTENCES. Generally, 512.
MITCHELL COUNTY DEVELOPMENT AUTHORITY. Revenue bonds, 258.
MORAL TURPITUDE. Defined, 115, 302.
MOTOR COMMON CARRIERS. Securities issued by, registration, 121.
MOTOR FUEL TAXES. National Guard organizations, fuel used by, 92. Nurserymen, refunds to, 191. Refunds, 25, 75, 268. Streets of municipalities, funds for, 26.
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT. Disbursing security, 737. Effect of amendment of law, 411.
MOTOR VEHICLES.
Certificates of titleNonresidents, 425. Time for issuance, 244.
Churches, owned by, taxation, 464. Drag race track, 133. Firearms in, 496. Intoxicating liquors, transporting,
seizure, special fees, 241, 305. License plates and fees, accepting
personal checks for, 607. Maximum weight and length lim-
itations, 408. Registration, Revenue Department

805

MOTOR VEHICLES-Cont'd. checking weight for purpose of enforcing law as to, 605.
Security interests, filing requirements, 344.
Tax exemption where owned by paraplegics, 58.
Title, 12. Training School for Boys, for, 100.
MOUNTVILLE, CITY OF. Charter, 519.
MUNICIPAL CORPORATIONS. Insurance premium taxes, collecting, 673. Investments in building and loan associations, 353. Lawyers, licenses for, 381. License fee upon out-of-State grower selling products in Georgia city, 208. Resignation of officerSeeking another office, for purpose of, 565. Withdrawal, 581. Streets, funds from motor fuel tax law for, 26. Taxation of public utilities, valuations, 220. Utilities furnished, taxation on, 87.
NATIONAL GUARD, GEORGIA. Cigar and cigarette sales, taxation, 242. Hatch Act, 61.
NOLLE PROSEQUI. Costs, 609.
NOLO CONTENDERE. Teaching position, as affecting appointment to, 566.
NONRESIDENTS. Fishing licenses, 636. School tuition, 737.
NURSERYMEN. Motor fuel tax refunds, 191.
NURSES. Intravenous and intramuscular injections by, 298.
NURSES, PRACTICAL, BOARD OF EXAMINERS OF. Expenses, reimbursement, 586.

NURSING HOME AUTHORITY OF CHATHAM COUNTY, INC. Sales and use taxes, 58.
OFFICERS AND EMPLOYEES, PUBLIC. See Employees of State. Contracts with firm connected with public officer, 245, 278, 283, 345, 44~ 501, 535, 53~ 71Q Resignation from officeTo seek another, 565. Withdrawal, 581.
OLD SOLDIER'S HOME. Brick from, contribution of, 488. Constitutionality of law relating to contribution of bricks from, 411.
OPTOMETRISTS.
Telephone directory, listing in, 64.
ORDINARIES.
Fees~
Fines suspended or dismissed, where, 455.
Mental hearings, 709. Insolvent cost funds, 358. Militia districts, authority as to,
339. Traffic court, 723. Traffic jurisdiction where violation
of State laws outside municipalities, 748. Traffic offenses, jurisdiction as to, 300.
OSTEOPATHS. County medical examiners, as, 624. Licenses, 17.
PARDONS AND PAROLES, STATE BOARD OF. Executive Management Seminar, expense vouchers for, 165. Institute of Law and Government of University of Georgia Law School, contract with, 172. Misdemeanor files, destruction of, 318. Registration fee at annual conference, payment of, 176.
PARENT AND CHILD. Prisoners supporting children, 4.

806

PARKS, DEPARTMENT OF STATE. Bonds, procedure for issuing, 278. Game and Fish Commission agreement as to stocking, breeding, etc. of fish, 554. Mobile homes purchased by, 185.
PARKS, STATE. Air strip, construction of, 668. Concessions in, 518. Director, appointment as liaison office for funds granted pursuant to Land and Water Conservation Fund Act, 677. Liability for accidents, 666.
PAROLE. Misdemeanor prisoners, 3. Violation, procedure after, 36.
PAUPERS. Law students representing, 542.
PENAL AND REHABILITATION AUTHORITY, STATE. Revenue bonds, 380.
PENSIONS. Constitutionality of law as to, 402.
PERSONNEL BOARD, STATE. Appeals from dismissals to, 108, 562.
PHARMACIES AND PHARMACISTS. Permit renewal, 561.
PHARMACY, STATE BOARD OF. Immunity of members, 189.
PHYSICIANS AND SURGEONS. Association where doctors are in different fields, 791. Good samaritan laws, 725. Licenses, 414. Prison employee rendered service by prison physician, 231.
PICKETING. Construction of law as to, 670.
PIN-BALL MACHINES. Constitutionality of law as to, 74, 82.
PIPE LINE CARRIERS. Public Service Commission jurisdiction as to, 667.

PLANNING COMMISSIONS. Area planning commissions, constitutionality of law establishing, 670. County contract with, 273.
PODIATRISTS. Surgery by, 649.
PODIATRY EXAMINERS, STATE BOARD OF. Holding over of member, 216.
PONDS. Private, fishing, 197.
PORTS AUTHORITY, GEORGIA. Sale of timber on property of, 694.
POSSESSION.
Bullet removed from victim, of, 196.
POULTRY.
Health Department remedies as to, 481.
Nuisance, chicken house abated as nuisance, 260.
PRACTICAL NURSES, BOARD OF EXAMINERS OF.
Expenses, reimbursement, 586.
PRESCRIPTIONS.
Dangerous drugs, refilling, 45.
PRISONS AND PRISONERS.
Bonds for diagnostic and classification center or maximum security prison, 380.
Bridge, labor on, 142. City prisoners working with State
and county prisoners, 571. Civic labor in exchange for prison
facility, 632. Civil Rights Bill as affecting, 526. Driveways across private property,
convict labor to build, 200, 426. Employee rendered service by pri-
son physician, 231. Good time credit, 143, 240, 707. Industrial corporation, labor on
grounds of, 317. Labor, use of prisoners for, 70, 72,
73.

807

PRISONS AND PRISONERS-Cont'd. Misdemeanor sentences, import of 1964 laws as to, 392. Parole, see Parole. Press at executions, 346. Road labor, 73. Stone Mountain State Park, labor used to remove shrubbery, etc. from, 343. Support of children, 4. Utility services, agreements for, at maximum security prison, 651. Vocational training, 228. Well, labor to replace, 189. Work projects, placement of prisoners for, 72.
PROBATION, STATE BOARD OF. Area Probation Supervisor, contract of employment, 135. Bonds of employees, etc., liabilities on, 482.
PROFESSIONAL ASSOCIATIONS. Taxation, 84.
PROFESSIONAL ENGINEERS AND LAND SURVEYORS, STATE BOARD OF REGISTRATION FOR. Ethics and law, violation of, 399, 407.
PROPERTIES CONTROL COMMISSION. Lease, construction of term "walls" in, 778.
PSITTACINE BIRDS. Agreement form concerning rules and regulations as to, 308.
PUBLIC SERVICE COMMISSION. Emeritus commissioners, 625. Emeritus CommissionersStock purchased by, 536. Drive-away carrier service, regulation of, 150. Pipe line carriers, jurisdiction as to, 667. Railroad track relocation, jurisdiction as to, 536.
PURCHASES, SUPERVISOR OF. Audio-Visual Library of Education Department, purchases for, 612. Contracts required to be entered through, 280.

PURCHASES, SUPERVISOR OFCont'd. Drugs, foreign-made, purchasing, 55.
PURCHASING DEPARTMENT, STATE. Airplane, purchase of, 179. Leased premises, contracts for work on, 306. Newspaper advertisements for bids, 641.
RACING. Drag race track, 133.
RAILROADS. Track J;elocation, jurisdiction as to, 536.
REAL PROPERTY. Surface owner, rights of, 633.
RECORDS. Health Code, disclosure of records, 534. Hospitals, retention, 602, 642.
REIDSVILLE CITY COURT. Habeas corpus court costs, 450.
RESIDENCE. Divorce, requirements as to, 33. Military personnel dependents, 599. Military service, when in, 373.
REVENUE BONDS. Validation, time period, 136.
REVENUE COMMISSIONER, STATE. Rental contract for business machines, 47.
REVENUE DEPARTMENT, STATE. Computer equipment to non-governmental users, lease of, 419. Records, secrecy, 277.
REVERSIONS. Georgia accepting deed with reversionary clause, 755.
SAFETY, DEPARTMENT OF PUBLIC. Capital investments in property having reversionary clause, 406. Director, deputy, salary, 681.

808

SAFETY, DEPT. OF PUBLICCont'd. Employee's salary, increase in, 695. Intoxication, blood testing facilities, 206. Superior court judges, employees assisting, 38, 42.
SALES. Drugs, vending machines, 555. Guns, of, licenses, 74, 84, 95.
SALES TAXES. Bowling and bowling shoes, 48. Compensation to merchant for collection, 456. Foreclosure sales, 243. Jekyll Island State Park AuthorityPersonalty sold to, 287, 745. Water sold by, 294. Law books purchased for county law library, 270. Liens, priorities, 337. Meals served without charge to employees, 62. Merchant's compensation for collection, etc., 385. Motor freight carriers and independent contractors, contracts between, taxability, 172. Nursing Home Authority of Chatham County, 58. Time for assessment, extending, 297. Truck body manufacturer-seller, 67. Water sold by Clayton County Water Authority, 412.
SAVANNAH STATE COLLEGE. Payment of claims for construction at, 614.
SAVINGS AND LOAN ASSOCIATIONS. Intangibles taxes, 51.
SCHOOL BUILDING AUTHORIIT, STATE. Municipalities and counties requiring building permit fees of contractors in construction for, 493.
SCHOOL BUSES. Lease of, 671. State aid, 17. Traffic regulations, 303.

SCHOOL SUPERINTENDENTS, COUNTY. Audits of, 731. County funds for equipment for office of, 669. Eligibility, 225. Qualifications, 355. Vacancy, qualifications of person filling, 765.
SCHOOLS, PRIVATE. Public summer school, students in, 430.
SCHOOLS, PUBLIC. Attendance required, 308. Audit of, funds for, 62. Band uniforms, funds used for, 397. Bible reading in, 263, 573. BondsApproval of voters, 769. Classrooms already under construction when bond issue passed, 789. Disbursement of funds procured through issuance of, 594. Church, graduation held in, 304. Employees, tax-deferred annuities, 89. Married studentsPolicies as to, 708. Suspending, 276. Minimum Foundation Program, constitutionality of law, 84. Private teachers giving private lessons in, 401. Protective service suits, liability of school official who permits child to bring, 746. Summer school, private and parochial students in, 430. Tuition, nonresidents, 737. Vaccination of children, 3. Vocational-technical students included in computation of daily attendance, 775.
SEARCHES AND SEIZURES.
Motor vehicles transporting liquor, special fees, 241.
SECRETARY OF STATE.
Rules of agencies, filing of, 786.
SECURITIES.
Charge to jury, 179.

809

SECURITY TRANSACTIONS. Motor vehicles, filing requirements, 344.
SEGREGATION. Voter registration lists, 146.
SENTENCES. Concurrent or consecutive, 309. Good time allowance, 143, 240, 707. Misdemeanor sentences, generally, 512. Suspended, service and expiration of, 514.
SHERIFFS. Damage or loss of property under sheriff's control by virtue of execution, 520. Deputy serving as ex-officio justice of the peace, 621. FeesAttendance, 486. Fines suspended or dismissed, 455.
SLOT MACHINES. Destruction of, 726. Generally, 306.
SOCIAL CIRCLE. Education board, use of Walton County funds, 77.
SOLICITORS GENERAL. Emeritus officers, 437, 439. Salary system, placing on, 317. Vacancy, filling, 738.
SOLICITORS GENERAL RETIREMENT FUND. Contributions, payment of, 679.
STATE OF GEORGIA. Deed with reversionary clause, accepting, 755. Drugs, foreign-made, purchasing, 55. Employees, part-time, eligibility for insurance plan, 219. Employees' Retirement System, see Employees Retirement System. Merit system, civil defense employees, 7.

STATE OF GA.-Cont'd. Property of, easements over, 699. Street assessments, liability for, 744.
STATE PATROL. Slot machine destruction, 726. Superior court judges, assisting, 38, 42. Traffic jurisdiction on certain highways, 496.
STATUTES. Adjournment, bills passed after time for, 392. Court orders, precedence over, 476.
STERILIZATION. Eugenic sterilization, generally, 483.
STONE MOUNTAIN MEMORIAL ASSOCIATION.
Audit of, 492. Highway Department, contract
with, 86. Membership, eligibility, 169. Stone Mountain Plantation, Inc.,
purchasing assets of, 234.
STREETS. Motor fuel tax law funds for, 26.
SUNDAY. Hunting on, bow and arrow, 624. Marriage licenses issued on, 644.
SUPERIOR COURT CLERK'S RETIREMENT FUND. Administrative Procedure Act, applicability of, 661.
SUPERIOR COURTS. JudgesEmeritus, requirements, 680. Retirement, 211. State Patrol or Georgia Bureau of Investigation assisting, 38, 42. Jurisdiction of minors, relative jurisdiction of juvenile courts, 690.
SURPLUS PROPERTY, GEORGIA STATE AGENCY FOR. Authority of, 625. Health, Education and Welfare De-

810

SURPLUS PROPERTY, GA. STATE AGENCY FOR-Cont'd. partment, agreement with, 105. State institutions purchasing from, 630.
TAX COMMISSIONERS. Commission, amount, 136. Time for which returns and other records held, 50.
TAX DIGESTS. Order, alphabetical, etc., 75.
TAX RECEIVERS. Commission on corporation or public utility taxes, 198.
TAXATION. Cigarettes, 779. Cigars and cigarettes sold to National Guard, 242. Estoppel to collect under second notice of deficiency, 584. Intangibles, see Intangible Taxes. Intoxicating liquors, 361. Liens, priorities, 337. Motor fuel tax law, refunds, 25. Municipalities furnishnig utilities, 87. Professional associations, 84. Property, of, see Ad Valorem Ta.xes. Recording tax, liability, 605. Situs of personalty of members of armed forces, 364.
TAXATION, MUNICIPAL. Insurance premiums, 673.
TEACHERS. Barbers, of, qualifications, etc. 485. Collective bargaining and striking, 524. Cosmetology, 184. Grants to assist in advanced studies, 758. Loyalty oath, 676. Non-citizen, employment of, 214. Sick leave expenses, 766. Tenure, 342, 756.
TEACHERS' RETIREMENT SYSTEM. Death benefits, 656. Minimum floor, 783. Monthly benefits or lump sum cash settlement, 202. Release of claims, 167. Residence of beneficiaries, 281.

TELEPHONE DIRECTORY. Optometrists, listing of, 64.
TEXTBOOKS. Committee appointed by State Board of Education to study and make recommendations as to, holding closed meetings, 790. Insurance of, 787.
TIMBER. Experiment stations selling, 40.
TRAFFIC OFFENSES. Ordinaries' jurisdiction, 300.
TRAFFIC REGULATIONS. School buses, 303.
TRAINING SCHOOL FOR BOYS, GEORGIA. Motor vehicle for, 100.
TRANSPORTATION. Firearms, of, 496.
TRUST COMPANIES. Preferred stock, issuing, 39.
TITLE. Motor vehicles, 12.
UNION COUNTY. Justice of the peace, issuance of commission to, 651.
UNIVERSITY SYSTEM OF GEORGIA. Admissions philosophy, 674. Art funds, 537. Board of RegentsAdministrative Procedure Act, applicability, 622. Employees, travel expenses, 88. Civil Rights Law, compliance with, 666. Contract with firm merging with parent firm, 594. Employeas, leave allowance, 16. Experiment Stations selling timber, 40. Georgia Institute of Technology, see Georgia Institute of Technolo'[Jy. Grants, Higher Education Facilities Commission, 740.

811

UNIV. SYSTEM OF GA-Cont'd. Junior College Act, constitutionality of, 100. Junior colleges participating in federal act, 696. Lease termination at request of Georgia Institute of Technology, 529. Loyalty oath, 676. Nolo contendere as affecting appointment to teaching position, 566. Real property, purchase of, 441. Residence of student, 201, 599. Safety motor vehicle inspection station, appointment as, necessity for performance bond, 643. Salary of dismissed faculty member, 674. Savannah State College, payment of claims for construction at, 614. Tenure of teaching staff, 127. Tuition fees, residents, 88.
URBAN RENEWAL. Ad valorem tax on property acquired by urban renewal authority, 652, 653.
UTILITIES, PUBLIC. Fieri facias against, 348.
VACCINATION. School children, 3.
VALIDATION OF BONDS. Attorneys for, 590.
VENDING MACHINES. Drugs, 555.
VETERANS. Motor vehicles owned by paraplegics, taxation, 58.
VETERANS SERVICE, DEPARTMENT OF. Director, salary and travel expenses, 98.
VITAL STATISTICS. Disclosure of records, 534.
VOCATIONAL EDUCATION. Loans of equipment and facilities for, 154.

VOCATIONAL REHABILITATION, DIVISION OF. Grants to private non-profit agencies, 638. Medical Advisory Committee, limitation of participation by medical profession, 209.
VOCATIONAL TRAINING. Prisoners, 228.
VOTER REGISTRATION PLACES. Establishment of additional, 125.
VOTING. See Elections.
WALLS. Construction of term in lease, 778.
WALTON COUNTY. Social Circle Education Board, funds, 77.
WARM AIR HEATING CONTRACTORS, BOARD OF. Person holding certificate of skill and qualifications qualifying more than one company for registration, 775.
WARNER ROBINS HOUSING AUTHORITY. Funds paid in lieu of taxes, disposition, 76.
WATER QUALITY CONTROL. Rules and regulation, promulgation of, 617.
WATER QUALITY CONTROL BOARD. Funds, 527. Powers and duties, 587.
WATER RESOURCES RESEARCH ACT. Georgia Institute of Technology receiving grants relative to, 648.
WATERS AND WATERCOURSES. Water uses from, 748.
WEAPONS. Bullet removed from victim, possession of, 196.

812

WEAPONS-Cont'd. Game and Fish Commission regulations, 237. Motor vehicles, in, 496. Transportation of firearms, 194.
WELFARE, STATE DEPARTMENT OF PUBLIC. See Fa,mily and Children Services, Department .of.
WESTERN AND ATLANTIC RAILROAD. Property lines, determination of, 232.
WESTERN AND ATLANTIC RAILROAD COMMISSION. Lease, construction of term "walls" in, 778.

WESTERN UNION. Highway construction necessitating adjusting of facilities, costs, 711.
WILKES COUNTY HOSPITAL AUTHORITY. Funds for nursing home proposed by, 415.
WINE. Domestic, 138. Sale for industrial purposes, 158.
WOODED LANDS. Valuation for tax purposes, 79.
WORKMEN'S COMPENSATION. Premiums paid from educational funds, 760. State employees health insurance program, where expenses paid through, 374.