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 ' LAWRENCE S. CAMP-------------------------------------------------- ______________1932-1932 M. J. YEOMANS-------------------------------------------------------- _________________1933-1939 ELLIS G. ARNALL______________________________________________________________________1939-1943 GRADY HEAD___________-------------------------------------------------------------------1943-1945 EUGENE COOK___________________________________________________________________________1945-1965 iii ~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 v 1 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 2 (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. 3 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 4 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. 5 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." 6 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. 7 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 8 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? 9 "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- 10 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. 11 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- 12 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. 13 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. 14 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. 17 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. 18 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. 21 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. 25 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." 26 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." 27 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. 28 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 ' 29 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. / 30 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: 34 "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. 36 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. 38 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). 40 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. 41 "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. 42 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 59 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. 60 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, 61 190 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- 62 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 63 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- 64 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 65 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. 66 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. 67 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 68 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. 69 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- 70 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 71 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." 72 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 73 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. 74 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). 75 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 76 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 77 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 78 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. 79 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: 80 "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 81 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): 82 "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 83 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." 84 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. 85 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 86 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. 87 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- 88 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. 89 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. 90 501(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 91 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 92 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. 93 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- 94 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 95 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. 96 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- 97 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- 98 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- 99 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...." 100 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." 101 <~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 102 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 103 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. 104 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 105 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.'' 106 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. 107 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. 108 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 109 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. 110 652 (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. 111 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 112 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). 113 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 114 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. 115 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). 117 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). 118 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. 119 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- 120 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. 121 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. 122 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. 123 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. 124 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. 125 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. 128 (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.'' 129 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 cth_e__r__e__t_o__,.'sthaeppBeaolarudpoonf 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 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: ... 588 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. 589 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?" 590 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. 591 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. 592 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 593 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. 594 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 595 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 596 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- 597 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). 598 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. 599 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. 600 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 601 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 602 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 603 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 604 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. 605 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 607 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 609 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 610 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 611 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), 612 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" 613 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). 615 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. 616 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. 617 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. 618 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. 619 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 620 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." 621 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). 622 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 623 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 624 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?" 625 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." 632 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. 633 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 634 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 645 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 --------" 646 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: 647 "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 648 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- 649 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. 656 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; 658 (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. 659 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 660 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 661 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. 662 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. 663 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 664 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 665 "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. 666 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 667 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). 668 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- 669 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 670 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- 671 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- 672 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. 673 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. 674 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. 675 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." 676 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- 677 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 678 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. 679 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 680 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:...." 681 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 682 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." 683 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 684 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 685 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. 686 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 687 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. 688 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. 689 "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. 690 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 691 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. 692 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 693 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). 694 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. 695 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. 696 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- 697 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. 698 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- 699 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 700 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. 701 "(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." 702 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, 703 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- 704 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. 706 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). 707 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 709 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 715 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 716 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 717 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 718 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 720 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 722 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 726 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." 728 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 729 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 730 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? 731 (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. 732 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. 733 "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: 734 "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- 735 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 736 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- 741 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. 743 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. 747 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." 752 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.