OPINIONS of THE ATTORNEY GENERAL 1967 ARTHUR K. BOLTON ATTORNEY GENERAL ATLANTA THE HARRISON COMPANY PUBLISHERS TABLE OF CONTENTS OPINIONS .. l TABLE OF CONSTITUTIONAL PROVISIONS CITED 0 , 0 0 0 637 TABLE OF GEORGIA LAWS CITED 639 TABLE OF GEORGIA CODE ANNOTATED SECTIONS CITED . . . . . . . . . . . . . . . . . . . . . . . . . . 651 INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . 673 ATTOR:\IEYS GE:\IERAL OF GEORGIA HENRY P. FARRER . . . . . . . . . . . . . . . . . . . . 186S-1872 N.J. HAMMOND ...................... 1872-1877 ROBERT N. ELY ...................... 1877-1880 CLIFFORD L. ANDERSON ................ 1880-1890 GEORGE N. LESTER ................... 1890-1891 W. A. LITTLE . . . . . . . . . . . . . . . . . . . . . . . . IS91-IS92 J. M. TERRELL . . . . . . . . . . . . . . . . . . . . . . IS92-1902 BOYKIN 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 ARTHUR K. BOLTON . . . . . ........... 1965- III ARTHUR K. BOLTON The Attorney General LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1967 NAME Bolton, Arthur K. Tidwell, G. Ernest Blackmon, John A. Bryan, W. Wheeler Castellani, Robert J. Chambers, Richard L. Childers, William R., Jr. Cocalis, Alexander Cohen, Gerald H. Coleman, J. Robert Crumbley, R. Alex, Jr. Evans, Alfred L. Feldman, Joel M. Gordon, Marion 0. Harper, William L. Hearn, George J., III Hill, Harold N., Jr. Johnson, Coy R. McDonald, Louis F. Michael, H. Perry Nardone, A Joseph, Jr. Robins, Mathew Ruskaup, Larry D. Setliff, Carter A Sherrell, Robert E. Sims, Marshall R. Sligh, John A., Jr. Summerour, E. J. Thompson. Melvin E., Jr. Williams, Joel C., Jr. Young, Hardaway, III TITLE Attorney General Executive Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Attorney Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Attorney Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Attorney Attorney OPINIONS of THE ATTORNEY GENERAL 1967 OPINION 67-1 (Unofficial) January 3, 1967 This will acknowledge your letter attaching a copy of a notice of cancellation of the Catoosa County Sheriffs bond. You have asked the following: "Can this bond be cancelled without permission? If so, and the sheriff does not present a new bond, who's responsibility is it and what steps are taken if he does not present a $25,000.00 bond?" I call to your attention two Code Sections which provide: "89-424. (30 1) Relief of sureties; insufficiency of sureties.- When the surety on any bond, given by any officer for the performance of any public duty, shall give notice, in writing, to the Governor, of his desire to be relieved from future liability, for good cause therein stated and sworn to (of which the Governor shall be the judge), or any such surety shall in the opinion of the Governor, formed upon satisfactory evidence, become insufficient, it shall be his duty to require of such officer a new bond and surety. (Act 1845, Cobb, 1036.)" "89-425. (302) Officer failing to give new bond when required.-If any officer shall fail to comply with such requisition within I0 days from the date he is served personally with a copy of the executive order containing such requisition, he shall be, on account of such failure, removed from office and a vacancy declared." The sheriffs bond is written to cover his term of office and since it is required to be given conditioned for the faithful performance of his public duty (Ga. Code Ann. 24-2805), it can only be cancelled with the approval of the Governor. In the event the surety is legally relieved from future liability, the sheriff is required to give a new bond and surety and upon failure to do so may be removed from office. See Bosworth v. Walters, 46 Ga. 636 (1872). OPINION 67-2 (Unofficial) January 4, 1967 In your letter you ask "under what circumstances, if any, should the Tax Collector sell a serviceman a tag without payment of ad 2 valorem taxes, where the serviceman claims to be a non-resident, and, as such, entitled to purchase a tag without the payment of ad valorem tax?" A serviceman who is not a resident of Georgia, and whose presence in Georgia is as a result of military orders, is immune from ad valorem taxes on personal property by virtue of Chapter 14 of the Soldiers and Sailors Civil Relief Act of 1940, as amended. 50 U .S.C. App. Section 574. Therefore, the only question for the Tax Collector to determine is whether or not the serviceman is as he claims to be, a non-resident of the State of Georgia. Snapp v. Neal, 86 S. Ct. 485 (1966); California v. Burard, 86 St. Ct. 478 (1966). This can be done in any number of ways; by affidavit of his commanding officer showing the place of the serviceman's enlistment; by affidavit of the serviceman, or other si111ilar means. Ad valorem taxation of motor vehicles in Georgia is a tax wholly administered by local officers. Therefore, it should be left to the determination of such local officers as to what would be sufficient to show non-residency of a serviceman, keeping in mind the only question involved is one of residency. OPINION 67-3 January 5, 1967 You ask for an opinion as to whether it is necessary for the final order in an adoption proceeding to indicate the prior name of the adopted child. As background for the question posed, you refer to the Department's policy of confidentiality regarding such information and the fact that it is not even made known to the adopting parents. You further indicate that the prevailing practice has been for the final order not to reflect the child's pre-adoption name but merely to refer to him by his post-adoption name and being the child named in the petition for adoption (The preadoption name is required by law to be set forth in the petition, infra). You point out that while the adoptive parents (who are usually equally anxious not to know the prior name of their adopted child) rarely would have reason to obtain a copy of the adoption petition, it not unusual for them to secure a copy of the final order for various legal purposes. OPINION It is my opinion that the pre-adoption name of a child need not be given in the final order of adoption. 3 DISCUSSION We are aware of the fact that sociological opinion is rather uniform concerning the general desirability of making the break between natural and adoptive parents complete, with neither aware of the identity of the other. In Georgia, this is a matter of public policy. While Ga. Code Ann. 74-407 specifies that a petition for adoption must set forth various items of information, including the pre-adoption name, age and residence of the child as well as the name by which he is to be known if the adoption is completed, Ga. Code Ann. 74-419 provides that such petition, all amendments thereto, all decrees or orders thereupon, and also all records of the State Department of Family and Children Services and State Department of Public Health relating to the adoption: "shall be kept sealed and locked and can only be examined when, after written petition has been presented to the court having jurisdiction of adoptions, the said court has passed an order permitting such examinations. The records of adoptions shall not be open to the general public for inspection. Only the parties at interest in the adoption, their attorneys and/ or representatives of the State Department of Family and Children Services shall have the right to examine such records, and then only when good cause has been shown in writing to the court and an order' passed thereon, as hereinbefore provided in this section." In light of this strong public policy of confidentiality and the fact that adoptive parents would require a copy of the final order far more frequently than they would the original petition for adoption, it would seem that the only remaining question is whether in the case of the final order as well as in the case of the petition (i.e. under Ga. Code Ann. 74-407), there is an express mandate that the preadoption name of the child be stated. A review of the applicable statutory provisions satisfies me that such is not the case. Ga. Laws 1966 pp. 212, 213 (Ga. Code Ann. 74-414) relating to the final order of adoption merely provides that the decree of adoption shall declare: " . . . the said child to be the adopted child of the petitioner and capable of inheriting his estate and also what shall be the name of such child." It might indeed be implied from the inclusion of a requirement that the post-adoption name be specified and omission of a like 4 requirement respecting the pre-adoption name that the General Assembly did not contemplate that the pre-adoption name would be included in the final order (inclusio unis est exclusio alterius). In any event, it can at the very least be said that in the absence of an express requirement to the contrary such information as the identity of the natural parents or pre-adoption name of the child need not be set forth in the final order of adoption. I, therefore, conclude that the practice you mention of merely referring to the pre-adoption name of the child as being that which is set forth in the petition is legally permissible as well as the obviously better practice in light of the public policy of confidentiality regarding such information. OPINION 67-4 (Unofficial) January 6, 1967 You ask an opmwn on several questions concerning the ad valorem taxation in Georgia of motor vehicles owned by nonresident servicemen who are stationed in Georgia as a result of military orders. In 1966, the General Assembly of Georgia passed a law which, for the purposes of ad valorem taxation, classified motor vehicles as a separate and distinct class of tangible property. This law provided a different method for returning and collecting ad valorem taxes on motor vehicles. It did not impose a new tax on motor vehicles in lieu of ad valorem taxes. It simply required that if a motor vehicle was subject to ad valorem taxes a return of such vehicle would be made and the taxes paid at the time application was made for a license plate. If a license plate is not required for a motor vehicle, a return must nevertheless be filed and taxes paid by the first day of April. (Ga. Laws 1966, pp. 517, 519). Motor vehicles owned by non-resident servicemen stationed in Georgia as a result of military orders are exempt from ad valorem taxes imposed by the State of Georgia whether or not the state of residence of the serviceman imposed or assessed such tax against him. Soldiers and Sailors Civil Relief Act of 1940, as amended, (50 U.S.C. Appendix 574). California v. Buzard, 86 S. Ct. 478 (1966); Snapp v. Neal, 86 S. Ct. 478 (1966). The sole right of taxation is in the state of original residence whether or not that state exercised the right. California v. Buzard, supra. 5 A serviceman who has not registered his car and obtained license plates under the laws of his home state may be required to license his car in the State of Georgia, and to pay all taxes essential to the functioning of the State's licensing and registration laws. The ad valorem tax in Georgia is not incidental to licensing and registration laws. There is nothing in the law passed by the General Assembly of Georgia in I966 which would affect the exemption afforded servicemen under the Soldiers and Sailors Civil Relief Act of I940. Ad valorem taxes are collected at time of application for license plates for motor vehicles only if under the tax Iaws of this State and other applicable statutes the motor vehicle is subject to ad valorem tax in the State of Georgia. OPINION 67-5 January 6, 1967 This will acknowledge receipt of your letter requesting an opinion on the following questions: I. What would be the fees for traffic cases made either by the Sheriff or the Georgia State Patrol? 2. Would this include turn key fee and board bill on each case if the Defendant were never locked up? 3. What actual cost would the Sheriff or County be entitled to if the Sheriff or State Patrol made a case and the Defendant was never locked up? 4. If two cases were made on the same ticket, for example driving under the influence, and speeding, would you be entitled to cost for each charge? 5. Is it necessary to have a warrant with a cash bond forfeiture and would the warrant be included in the cost? (I) The fees for traffic cases due the Ordinary can be found under Georgia Laws, as amended, I958, pp. 354, 355 (Ga. Code Ann. 24-I7I6), and as relates to Public Safety Patrol Trials is as follows: Public Safety Patrol Trials: Holding Trial: Issuing Warrant $5.00 $2.50 6 However, it was held in case of Sikes v. Charlton County, 103 Ga. App. 251 (3), 119 S.E. 2d 59 (1961) that the Ordinary is also entitled to a fee of Three Dollars ($3.00) for each traffic case filed and docketed. Ga. Laws 1959, pp. 354, 357 (Ga. Code Ann. 24-1716(a)) provides that the following funds collected by fine or bond forfeiture in all criminal or quasi-criminal cases violating state statutes or traffic laws shall be paid to the Secretary-Treasurer of the Ordinaries Retirement Fund: "For any fine or bond forfeiture of more than $4.00, but not more than $25.00 ... $1.00 For any fine or bond forfeiture of more than $25.00, but not more than $50.00 . . . $1.50 For any fine or bond forfeiture of more than $50.00, but not more than $100.00 ... $2.00 For any fine or bond forfeiture of more than $100.00 . . . $2.50." The foregoing would be a proper disbursement of fees in the event the case was made by the Georgia State Patrol. If the case was brought before your Court by the Sheriffs Department, the above would apply except the Sheriff would not personally be entitled to a fee. (Ga. Laws 1964, p. 310). However, additional fees would be due to the Board of Commissioners of the Sheriffs Retirement Fund of Georgia, Ga. Laws 1963, pp. 630, 634 (Ga. Code Ann. 24-2810 (a)). Where a fine is collected or a bond is forfeited and collected in the amount of Five Dollars ($5.00) or more, including cost, One Dollar and Fifty Cents ($1.50) should be paid to said fund. The balance of the fine or bond forfeiture would go to the County Ga. Laws 1964, p. 337 (Ga. Code Ann. 23-1029). (2) Since the Defendant has not been incarcerated, there would be no turn key fee or board bill. (3) The County would be entitled to all of the remaining fine or bond forfeiture after payment of the holding trial, issuing warrant, filing and docketing fees. The lawful payments to the Ordinaries Retirement Fund and Sheriffs' Retirement Fund are also required to be paid in the proper case, before the remainder is turned over to the County. (4) When two cases are made on the same ticket, you are 7 entitled to only one fee. It was held in Sikes v. Charlton County, supra at 254: " . . . Where only one arrest is made and a prisoner while under arrest is charged with two or more offenses the arresting officer is entitled to one arrest fee." Even though this case deals with a Sheriff's fee, it is concluded that the same analogy would apply to your Court. (5) Arrests in traffic cases are generally made without a warrant. It is the duty of the arresting officer in this type case (arrest without a warrant) to take the arrested party, without delay, before an officer authorized to issue a warrant. (Ga. Code Ann. 27-212). The warrant must issue within a reasonable time or the entire transaction void ab initio. Piedmont Hotel Company v. Henderson, 9 Ga. App. 672 (6), 72 S.E. 51 (1911). A warrant in a cash bond forfeiture is essential and a fee is provided as mentioned in part (1) above. OPINION 67-6 January 9, 1967 You raised certain questions with respect to the interpretation of Section 8 of an Act approved February 17, 1950, (Ga. Laws 1950 p. 408) providing for the leasing of the overhead or underground rights or property not useful for railroad purposes of the Western and Atlantic Railroad. Specifically, the question presented is whether the aforementioned section authorizes the Governor to declare an existing lease between the Western and Atlantic Railroad Commission and City Center, Inc. forfeited for any reason other than non-payment of rent. The forfeiture language of Section 8 of the Act states: "For failing or refusing to comply with said lease contract by the lessee, the Governor, at his option, may declare the lease forfeited and take immediate possession of the rented premises." A review of the lease contract reveals that it provides in Section 16 for stipulated damages in the event the lessee "shall become in default in the payment of any sum due the State of Georgia or in the performance of any other obligation assumed by it, such default continuing for thirty days after written notice of such default." The lease further provides that, upon the failure or refusal of the lessee to pay such stipulated damages, such failure or refusal continuing 8 for twenty days, the Governor, at his option, may terminate the lease. Thus, under the terms of the lease itself, the Governor may under certain conditions terminate it for failure of the lessee to pay stipulated damages arising not only from non-payment of rent but from default of "any other obligation assumed." This forfeiture right, however, does not arise except upon failure to pay stipulated damages. Although the forfeiture language of the statute set out above spells out no particular lease violations that may give rise to the right of the Governor to terminate the lease, it is contained in Section 8 the first part of which provides for stipulated damages in the event of failure of the lessee to pay the monthly rental as specified in the lease agreement. There is no mention of the right of termination by the Governor in the title of the Act. The title, however, does contain the following: ". . to provide for a penalty for failure or refusal to pay monthly rentals;" It is my opinion that this language sets forth the purpose of Section 8 including the forfeiture provision and evidences a legislative intent of authorizing the Governor to declare a lease entered into under the terms of the Act forfeited only for nonpayment of rent. In the interpretation of any Act, a cardinal rule is to look diligently for the intention of the General Assembly. Ga. Code Ann. 102-102(9); Lamons v. Yarbrough, 206 Ga. 50 ( 1949); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1950). If the forfeiture language of the statute is given a construction which permits the Governor under its terms to terminate a lease for reasons other than non-payment of rent, then its validity might be questionable in that it may contravene Art. III,Sec. VII, Par. VIII of the Georgia Constitution (Ga. Code Ann. 2-1908) which provides inter alia: "No law shall pass which ... contains matters different from what is expressed in the title thereof." Every law must be given an interpretation, if its terms will permit, that renders it valid rather than invalid. Hill v. Busbia, 217 Ga. 781, 782 ( 1962); Turman v. Mabry, 221 Ga. 153 (1965). I do not consider it necessary, however, to reach the constitutional question nor to base my conclusion on the constitutional issue in view of the apparent legislative intent evidenced when the language of Section 8 is construed in harmony with its expressed purpose as contained in the title of the Act. 9 In view of the foregoing, it is my opmwn that the forfeiture provision should be given a construction of limited application of applying only to Section 8 of the Act of which it is a part. Given such a construction, it is my opinion that the authority of the Governor to terminate the lease under Section 8 of the Act is limited to non-payment of rent. OPINION 67-7 January 10, 1967 You refer to situations where the annexation of county areas by a municipality having an independent school system affects school properties of the county school system. In specificity, you pose the following questions. l. If territory annexed to a municipality having an independent school system contains a school building or facility owned and operated by the county system, does such building or facility become a part of the municipal school system? 2. Assuming the answer to question one is in the affirmative, is there any way in which it would be possible for such a school building or facility to continue to be owned and operated by the county system, and, if so, under what legal conditions or limitations could this be accomplished? 3. May a county school system contract with a city system for authority to operate a school within the boundaries of the city system? My conclusions as to the above questions, along with the reasons therefor, are as follows: CONCLUSIONS 1. In the absence of an express intent on the part of the legislature to the contrary, or, in the absence of an agreement to the contrary on the part of the interested parties, the annexation of property containing buildings and school facilities of a county school system by a municipality having an independent school system results in a transfer of the ownership and control of such building and facilities to the municipal school system. 2. It would be possible for such school buildings and facilities to continue to be operated and/ or owned by the county school 10 system either where the legislature so provides in the annexation legislation, or, where the interested parties (i.e. the county and municipal school systems) so agree. 3. A county and municipal school system may provide by contract for the continued operation of such school by and for the county school system. DISCUSSION 1. In Board of Education of Fulton County v. Board of t Education of College Park, 147 Ga. 776,779 (1918), the Supreme Court of Georgia held that where the General Assembly created a municipal school system, such system succeeded the county school system with respect to educational matters and title to public school property within the confines of a newly created municipal system. The rationale of the decision was that each board of education holds title to such real property as a statutory trustee or public agent and that it is within the power of the General Assembly, either expressly or by implication to transfer the property so held from one trustee or agent to the other. Based upon this decision, the Office of the Attorney General has consistently ruled that: "where the corporate limits of a municipality are extended so as to take in an area where a county school is located, the school authorities of the independent municipal system succeed to the control of all educational matters in such area, and also to title to real estate held as public school property, in the absence of express intent on the part of the legislature or in the absence of an agreement between the parties." See Op. Att'y Gen. 1954-56 pp. 168-69; 1961 pp. 134-137. 2. The power of the General Assembly to allocate public school properties between the interested school boards as statutory trustees or public agents (as referred to above) could obviously be exercised in the annexation legislation to provide for continued operation of the school buildings and facilities in question by the county school system. Such continued operation and ownership by the county school system could also be achieved by agreement, as indicated in response to your third question, infra. 3. The general constitutional authority of a county and municipal school board to enter into a contract for the continued operation and/ or ownership by the former (for county school 1 1 purposes) of those school buildings and facilities located in the annexed area, is contained in Art. VI I I, Sec. IX, Par. I of the Georgia Constitution (Ga. Code Ann. 2-7201 ). This provision declares that: "County Boards of Education and independent school systems may contract with each other for the education, transportation, and care of pupils." In addition, constitutional support for such a contract appears in Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901) which provides in part that: "The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created, for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." This provision was held to be applicable to boards of education in Walker v. McKenzie, 209 Ga. 653, 656-57 (1953). OPINION 67-8 (Unofficial) January 11, 1967 You inquired whether a special election can be held to fill the anticipated vacancy in the office of the Ordinary of Troup County prior to the effective date of your retirement. In Ga. Code Ann. 24-1707, provision is made for the Clerk of the Superior Court of the county in which a vacancy in the office of Ordinary occurs to call for an election within ten days of that fact being made known to him. If an election cannot be held within that time then such an election is to be called and held as soon as possible. In that same code section it is further provided that "until the vacancy is filled the judge of the city court or county court, as the case may be, shall serve as the Ordinary and shall be vested with all the powers of the Ordinary." Following the latter provision, the 12 code sets forth provisions for filling the vacancy pending an election if there is no such judge or if such judge cannot serve as ordinary. As you will note from Ga. Code Ann. 24-1707, the election to fill a vacancy in the office of Ordinary is to be held within 20 days from the date of the calling for such an election. Under the Election Code of 1964, Ga. Code Ann. 34-806 provision is made that "at least 30 days shall intervene between the call of a special election and the holding of same." Therefore, the latter provision would, in my unofficial opinion, control, and the special election to fill the vacancy in the office of Ordinary of Troup County must be held such that at least 30 days intervenes from the date of the calling to the holding of same rather than 20 days as provided in Ga. Code Ann. 24-1707. Ga. Code Ann. 24-1707, furthermore, provides for a method whereby the office of Ordinary is filled when a vacancy occurs and pending the filling of same by a called election. Since a vacancy cannot occur while an office is supplied by someone legally qualified to hold said office and an election cannot be held until there is a vacancy, a special election to fill the vacancy anticipated by your retirement cannot be held prior to your actual retirement since prior to the actual effective date of your retirement there is no vacancy. The above conclusion is supported by the provision in Ga. Code Ann. 24-1707 providing for procedures whereby the vacancy is filled pending the results of the called election to fill such a vacancy. Therefore, it is my unofficial opinion that Ga. Code Ann. 241707 is controlling and no special election can be held to fill the anticipated vacancy in the office of Ordinary of Troup County prior to the effective date of your retirement. OPINION 67-9 January 12, 1967 You requested an opinion as to whether or not certain so-called "Thrift Notes" being offered by North American Acceptance Corporation are negotiable instruments and thus exempt from regulation by the Georgia Securities Law. A review of a copy of one of the aforementioned notes which you forwarded to this office reveals that it is payable to order. It 13 provides for a due date and issue date and for a certain sum to be payable with interest at the rate of 7.2% per annum. It further provides: "The principal amount of the within note with accrued unpaid interest, shall be payable upon the due date upon presentation of the said note at the office of the maker. Notwithstanding the due date specified, the within note shall be due upon demand of the holder at any time prior thereto, and shall be paid, with unpaid accrued interest, upon presentation of the said note, at the office of the maker." It is my opinion that this note meets the requirements of Ga. Code Ann. 109A-3-104 to be a negotiable instrument provided it is properly completed and signed so that it promises to pay a sum certain in money. Section 5(g) of the Georgia Securities Act (Ga. Laws 1957, pp. 134, 149, as Amended; Ga. Laws 1963, pp. 557, 559, 560; Ga. Code Ann. 97-106(g)) providing for exempt securities under the Act exempts negotiable instruments maturing in not more than 12 months from date of issuance. It is, therefore, my opinion that the note in question when properly completed so that it is negotiable would be exempt under this Section provided the due date is fixed so that it is not more than 12 months from the date of issuance. OPINION 67-10 (Unofficial) January 12, 1967 You wrote concerning promotional schemes commonly used by merchandising companies, and the legality of such schemes such as "sweepstake" operations and others under Georgia criminal laws. Ga. Code Ann. 26-650 I provides "Any person who, either by himself or his agent, shall sell or offer for sale, or procure for or furnish to any person any ticket, number, combination, or chance, or anything representing a chance, in any lottery, giji enterprise, or other similar scheme or device, whether such lottery, giji enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor." (Emphasis added.) 14 Most of the promotional schemes fall apparently within the prohibitions outlined above. See Barker v. The State, 56 Ga. App. 705, 193 S. E. 605 (1937), and the case of Bloodworth v. Gay, 213 Ga. 51,96 S.E. 2d 602 (1957). The enforcement of criminal laws in Georgia is usually a matter for the Solicitor General or other local law enforcement officers, and the Attorney General has no authority or control over the action of such officers. OPINION 67-11 (Unofficial) January 12, 1967 You ask the following: "We have a local single man that votes in Clay County and purchases his automobile tag from Clay County but has an apartment in Albany, Georgia, and his work is in Albany, Georgia. He only comes to Clay County on weekends. He has around a $7,000.00 cottage on the lake. " . . . Is this man qualified for homestead exemption on this cottage on the lake in Clay County?" Ga. Code Ann. 92-233, provides in part as follows: "The word 'homestead' whenever used in this law ... shall mean and is defined to be the following: "(a) The actual permanent place of residence of a person who is the applicant and which constitutes the home of the family. "(c) Where the building is occupied primarily as a dwelling. "(h) In all the classes above defined, the homestead exempted must be actually occupied as the permanent residence and place of abode by the person awarded the exemption, and such homestead shall be the legal residence and domicile of such person for all purposes whatsoever." Ga. Code Ann. 92-234, defines an "applicant" as follows: "The word 'applicant' whenever used in this law . . . shall mean and is defined to be the following: 15 "(e) A person who is unmarried, or who is a widow or widower, and who permanently maintains a home owned and occupied by himself or herself." In determining whether this applicant is entitled to the homestead exemption you should ascertain from all the facts available whether or not the applicant owned and occupied the home on January l and whether or not it was being occupied as a permanent residence and place of abode and was the legal residence of the applicant for all purposes. I am enclosing a copy of an unofficial opinion of the Attorney General dated June 12, 1950 (Op. Att'y Gen. 1950, p. 173), which may be helpful in making this determination. OPINION 67-12 (Unofficial) January 13, 1967 You inquired whether the Vending Stand Act of 1956 applies to certain concession rights to be granted to Automatic Retailers of America in a certain State Office Building. This office has been advised by you that Automatic Retailers of America will be given concession rights in the Shirley Building, Atlanta, Georgia. Additionally we have been advised by you that these concession rights will consist of the establishment of vending machines for the dispensing of hot and cold drinks, sandwiches and soups. As we understand this information these concession rights will consist entirely of coin operated vending machine dispension. Under the Vending Stand Act, Ga. Code Ann., 32-2316 thru 32-2318, provision is made for the operation of vending stands or machines by blind or otherwise seriously disabled persons in order to enlarge such persons' economic opportunities and to stimulate such persons toward becoming self-supporting. By the aforesaid act preference is provided for such persons licensed by the Division of Vocational Rehabilitation provided that such vending stands do not unduly inconvenience the departments and agencies of the State of Georgia or adversely affect the interest of the State. The act also provides that it is the public policy of the State of Georgia that where the Director of Vocational Rehabilitation determines the 16 establishment of a vending stand to be feasible and the establishment of same does not unduly inconvenience the operation carried on in such building or property, the said vending stand site is not to be deemed available for letting to competitive bidders for revenue producing purposes unless the Director of Vocational Rehabilitation declines to establish a vending stand on said site. Under Ga. Code Ann. 32-2318, a "vending stand" is defined as follows: The term "vending stand" shall mean refreshment counters operated by the blind or otherwise seriously disabled persons, but shall not include commercial restaurants, cafeterias, and similar establishments for the serving of meals. Given this definition of a "vending stand" and the information supplied by you as to the nature of the concession rights granted to Automatic Retailers of America, it is my unofficial opinion that the above concession rights to be granted to Automatic Retailers of America are concession rights of which the first preference should, by virtue of Ga. Code Ann. 32-2318, be given to blind, or otherwise seriously disabled persons licensed by the Director of Vocational Rehabilitation as provided in the above cited statutes. This opinion is issued upon the basis of the information supplied by yourself as to the nature of the concession rights to be granted to the Automatic Retailers of America and same would, of course, be subject to reinterpretation should this information prove later to be inaccurate. OPINION 67-13 (Unofficial) January 13, 1967 You requested advice concerning the income tax consequences of a real estate business investment in Georgia by the University of Chicago. The University of Chicago would be exempt under Ga. Code Ann. 92-3l05(c), from the payment of Georgia income taxes on the income derived from real property owned in Georgia in the name of the University so long as the University continues to operate exclusively for educational purposes and so long as no part of the earnings of the University inure to the benefit of any private stockholder or individual. 17 Your letter makes reference to a 1966 amendment to the above Code Section; however, we are unable to find that this section was amended in 1966. Limitations with respect to competitive commerce are found in subsection (m) dealing with the taxation of real estate investment trusts, but would not limit the exemption provided for in subsection (c). The University would of course be required to pay ad valorem property tax on the realty owned under these circumstances. The University should qualify to do business with the Secretary of State. OPINION 67-14 January 16, 1967 You ask whether the area vocational schools maintained and operated by the State Board of Education are "schools" as opposed to "educational institutions for adults." My opinion and the reasons therefor are as follows: OPINION While such terms as "school" and "educational institution" are descriptive terms and not really susceptible of precise definition, the area vocational schools maintained and operated by the State Board of Education would be classified as "schools" under any definition of the term of which I am aware. DISCUSSION As aptly pointed out in 78 C.J.S. "Schools and School Districts" Section I: 'The word 'school' is a generic term of many definitions, denoting an institution or place for instruction or education, or the collective body of instruction and pupils in any such place or institution." Taken in this broad sense, the term school includes all places of instruction in any branch of knowledge, whether of high or low degree. See 47 Am. Jur. "Schools" Section 2. Quite obviously, the area vocational education schools maintained and operated by the State Department of Education would be "schools" under this broad definition just as would all universities and colleges in the State. Many courts have indeed held that "school" and "college" 18 are convertible terms. E.g. State Board of Pharmacy v. White, 84 Ky. 626, 2 S.W. 225, 227 (1886); accord, Weisse v. Board of Education of the City of New York, 32 N.Y.S.2d, 258, 261, 178 Misc. 118 (1942); Xavier University v. Thigpen, 151 So.2d 550, 553 (La. 1963). On the other hand, "school," as it appears in state constitutional and statutory enactments, has, where no intention of the legislature to the contrary appeared, been interpreted by various other courts as applying only to those educational institutions of the lower or ordinary grades, thus excluding universities, business colleges, or other institutions of higher learning. See 47 Am. Jur. "Schools" Section 2. This narrower definition has been stated as follows: "An institution of learning of a lower grade, below a college or university. A place of primary instruction. The term generally refers to the common or public schools, maintained at the expense of the public." Black's Law Dictionary "School" p. 1511 (4th Ed. 1951). lt would seem to me to be abundantly clear that even under this narrowest definition with which I am familiar, the area vocational education schools maintained and operated by the State Board of Education would be "schools" rather than educational institutions on the college or university leveJI. While it may be true that some of l. It is noted that your inquiry refers to educational institutions "for adults" rather than educational institutions "on the college or university level." I have adopted the latter phraseology in my reply for the simple reason that student age is obviously meaningless respecting the question of whether or not a given institution is a "school," regardless of whether the broad or the narrow definition is employed. A grammar school containing 45-year-old pupils would continue to be a grammar school just as a university containing 14-year-old students would continue to be a university. Age of the enrollees is wholly irrelevant to the definition of the definition of such terms as school, college, university, etc. Looking to the underlying concern of your letter, should a given federal program be restricted to schools attended by students all or a majority of whom are under some fixed age, we would, of course, defer to federal authorities as to whether a particular school is eligible. In such a situation, it could well be that some grammar, high schools and even colleges would be eligible while others would not. Such an 19 the students attending such schools already have a high school diploma, many others are individuals who have not completed high school. Hence one of the most common earmarks of a college or university level educational institution, to wit: the high school diploma as an admission requirement, is conspicuous by its absence. Moreover, it would seem that the fact that the General Assembly of Georgia considered such vocational schools to be an integral part of the public school system rather than college level institutions is also evidenced by the fact that it is the "State Board of Education" and not the "Board of Regents of the University System of Georgia" which is authorized and empowered to locate, establish, operate and maintain State area trade, vocational and industrial schools. See Ga. Code Ann. 32-2218. OPINION 67-15 (Unofficial) January 18, 1967 You refer to the jurisdictional problems concerning tickets for traffic offenses on Stone Mountain Park properties. In your letter, you refer to an unofficial opinion of the office of the Attorney General to General Harold Maddux, dated September 8, 1966, wherein it was concluded that the security officers of the Stone Mountain Memorial Association had authority to issue summonses for traffic violations, requiring the violators to answer such charges in the appropriate courts of DeKalb County. You indicate that you are now beset with a problem as to which court in DeKalb County would have jurisdiction. Most traffic offenses in DeKalb County are apparently tried in the Recorder's Court, created by Ga. Laws 1959 p. 3093, as offenses against county traffic ordinances. This Court, being a county court, has jurisdiction only with respect to offenses against county traffic ordinances on county properties, and, in view of such decisions as Hannah v. The State, 97 Ga. App. 188 (1958), I would agree with the memorandum of the Assistant County Attorney (attached to your letter) to the effect that jurisdiction to try violations of State traffic laws on Stone Mountain Properties is age criteria, of course, would have nothing at all to do with the question you have posed (i.e. whether the area vocational schools maintained and operated by the State Board of Education are "schools"). 20 vested not in the DeKalb Recorders Court, but is instead vested by general law in the Civil and Criminal Court of DeKalb County (this being a State as opposed to county court). The final problem would appear to be that posed the Solicitor of the DeKalb County Civil and Criminal Court as to whether he is empowered to try offenses on Stone Mountain property against State traffic laws upon a summons alone. I would assume that his understandable concern stems from Section 4A of Ga. Laws 1956 p. 3137 which vested jurisdiction over misdemeanors in the then "Civil Court of DeKalb County." Section 4A provides: " . . . that all prosecutions in criminal cases instituted in the Civil Court of DeKalb County shall be by written accusation made by the solicitor or an assistant solicitor . . . ." Quite naturally, I am right reluctant to attempt to second guess a county official concerning the operation and/ or jurisdiction of a court existing in his county pursuant to a law of local application, a law with which he, I am certain, is far more familiar than I am. On the other hand, it would seem to me that Ga. Code Ann. 92A-506 might be relevant to the situation. This provision, which is a statute of general application, states that an indictment or accusation shall not be required against a defendant charged with an offense against traffic laws of the State, and that a summons specifically setting out the charge shall be sufficient (it further provides for a special docket in such cases). It would seem to me that it would not be out of order for you to approach Mr. Smith to get his thinking as to whether this general law authorizing summonses in traffic cases might not take precedence over the law of local application which provides that misdemeanor cases in the Civil and Criminal Court of DeKalb County must be tried upon written accusation. See, e.g. Art. I, Sec. IV, Par. I of the Georgia Constitution (Ga. Code Ann. 2-401); Civil Service Board of Fulton County v. MacNeill, 201 Ga. 643 (1) (1946). OPINION 67-16 (Unofficial) January 18, 1967 You asked for our interpretation of Ga. Code Ann. 69-904 (Ga. L. 1966, pp. 409-414) relating to the annexation by municipalities of land contiguous to municipalities upon the 21 application of sixty per cent of the electors residing in and sixty per cent of the owners of land included in the area covered by the application for annexation. The Act states that: "For the purpose of determining ownership of property included within such application, the record title holder of the fee simple title, or his legal representative, shall be considered the 'owner' of such property." (Ga. Laws 1966, pp. 409, 411) You have asked whether the record title holder of the fee simple title is the grantor or the grantee of a security deed. A deed to land executed to secure debt will vest legal title to the land in the grantee but the grantor in such a deed retains the right of possession and the right of redemption by payment of the debt. Consequently, the grantor of a security deed retains equitable title to land transferred and parts only with the legal title thereto until surrender and cancellation of the security deed. (Bell, alias Hayes, et a/. v. Allied Finance Company, 215 Ga. 631 ( 1960); Kidd v. Kidd, 158 Ga. 546 (1924); Citizens Bank of Moultrie, et a/. v. Taylor, et. al., 155 Ga. 417 (1923). Accordingly, when the records show a land transfer in fee simple by a warranty or quit claim deed and a subsequent transfer of that same land in fee simple by a security deed, then each grantee in the above-stated transactions would appear as a record title holder. The grantee by warranty or quit claim deed would appear as the holder of equitable title and the grantee by the security deed would appear as the legal title holder. The Act, however, refers to the fee simple record title holder in the singular and it thus appears that the General Assembly did not contemplate that both the equitable and legal title owners should be counted in determining the eligibility of a land owner to make application for annexation. Thus, it becomes necessary to determine the legislative intent as to which class of title holder would be eligible to sign such application. Historically, the rights of a grantee by security deed have been circumscribed in favor of the grantor. Thus, the right of the grantor to a reconveyance of the property is absolute upon the grantor's compliance with the contract and the property shall not be affected by any liens, encumbrances or rights which would otherwise attach by virtue of the title being in the grantee. Ga. Code Ann. 67-1307. Reconveyance of the property to the grantor of the security deed is accomplished merely by cancellation of the security deed. Ga. Code 22 Ann. 67-1306. The Georgia Court of Appeals, per Guerry, J., has summed up this philosophy thusly: "The grantor in a security deed. . .while in peaceable possession thereof is, in respect to third persons, the owner of the land. He may bring an action for trespass against a third person (McClellan v. American Title and Timber Co., 135 Ga. 370, 69 S.E. 945); he may enforce the collection of rent against a third person against the claim of the grantee in the security deed. . . (Broxton v. Ennis, 96 Ga. 792, 22 S. E. 945); he may bring an action for trover to recover timber cut from the land and the grantee in the security deed . . . may not Boswell v. /vie . . . [31 Ga. App. 807]." Mills Lumber Company v. Milam, 57 Ga. App. 211, 219. See also the discussion of the origin and purposes of the security deed per Lumpkin, J., in Puser v. Thompson, 132 Ga. 280. Since the question of whether or not a p~ucel ofland is to become annexed to a municipality is one which is not likely to affect the security interest in such land, whereas such question would affect the grantor of a security deed, it is my unofficial opinion that the intent of the General Assembly in referring to "the record title holder of the fee simple title" was to give the grantor of a security deed the right to decide upon the question of annexation. Thus, in determining ownership of land for the purpose of determining the eligibility of a land owner to sign an application for annexation to a municipality, you should do so without regard to whether such land is encumbered by an oustanding deed to secure debt. OPINION 67-17 (Unofficial) January 19, 1967 You inquired whether there are any legal restrictions which would prohibit you, as a member of the Paulding County Board of Education, from serving also as a school bus driver, presumably for the same Paulding County Board of Education. Enclosed you will find a Xerox copy of an unofficial opinion dated December 5, 1952, wherein the Attorney General of Georgia expressed his unofficial opinion on your question. In that opinion, he stated that pursuant to Ga. Code Ann. 32-428, " ...a member of a county board of education would be prohibited from operating 23 means or facilities for school bus transportation for the county board of education." Op. Att'y Gen. 1952-54, p. 56. Additionally, a person holding membership on a county board of education and also serving as a school bus driver would violate the conflicts of interest doctrine under the common law which the Georgia Courts have adopted. Montgomery v. City ofAtlanta, 162 Ga. 534 (1926); Trainer v. City of Covington, 183 Ga. 759 ( 1937); and Op. Att'y Gen. 1958-59, p. 100. Therefore, it is my unofficial opinion, that Ga. Code Ann. 32428 and the above-cited opinion of the Attorney General are controlling, as well as correct, and that you, as a member of the Paulding County Board of Education, are prohibited from serving as a school bus driver in the same school system for which you serve as a member of the county board of education. OPINION 67-18 (Unofficial) January 19, 1967 You ask whether Ga. Laws 1966, p. 517, requiring payment of ad valorem taxes on motor vehicles prior to obtaining license tags is applicable to National and State banks. The policy of this State with respect to taxation of banks is set forth in Ga. Code Ann. 92-2406.1, as follows: "It is the policy of this State that all taxation shall be equalized as between State and National banks. All banks, banking associations, trust companies doing a banking business, and savings banks, created and incorporated under the laws of this State, shall be subject to taxation on the same basis, in the same manner, to the same extent, and with the same immunities and exemptions as National banks and banking associations created and incorporated under the laws of the United States, and located in this State." Congress has consented for states to tax National banks in one of four different methods as set forth in 12 U. S.C. A. 548. Georgia, in adopting the provisions of Ga. Code Ann. 92-2406, has elected to tax the shares of National banks, one of the methods permitted by Congress. When, as pointed out in Goodwin, Tax Collector v. The Citizens and Southern National Bank, 209 Ga. 908 (1953), the 24 State adopts one of the four different methods of taxation consented to by Congress, no other alternative method may be adopted. In view of the above, it is my opinion that the provisions of Ga. Laws 1966, p. 517, requiring payment of ad valorem taxes on motor vehicles prior to obtaining license tags do not apply to National and State banks. OPINION 67-19 January 23, 1967 You wrote regarding the status of juveniles transferred to the Division for Children and Youth by the Department of Corrections pursuant to Ga. Laws 1956, p. 161, 173. Specifically, you have asked: "l. Once transferred by the Department of Corrections does the Division have the same rights to plan and care for these boys, other than to release prior to date eligible for parole, as it does for children committed directly by the juvenile courts? "2. May these boys be permitted the same privileges as other boys concerning home visits to parents and/ or relatives when this is considered to be in the best interest of the boy? "3. Would it be possible for the Division to arrange other plan of care outside of the institution prior to the date the boy is eligible for parole so long as he remains in legal custody of the Division?" It is my official opinion that the answer to each of the above questions is "yes" for the reasons hereinafter set forth. The Division for Children and Youth was created, by statute entitled the "Children and. Youth Act", as the exclusive State agency for the operation of State institutions for children (Ga. Laws 1963, pp. 81, 94). The Division is autonomous (Ga. Laws 1963, p. 81, at pp. 81, 94), with the direction and supervision of said Division vested in the State Board for Children and Youth (Ga. Laws 1963, pp. 81, 87). It is the responsibility of the Board to adopt and promulgate policies, rules and regulations governing the operation of all training schools and facilities under the jurisdiction and control of the Board. (Ga. Laws 1963, pp. 81, 91 ). There is no 25 language in the Act suggesting that the supervisory powers of the Board over the children committed to its care are limited by any consideration other than the rehabilitation and welfare of such children. Moreover, when the General Assembly authorized transfer of juveniles from the Department of Corrections to the Division, it vested the Division with the power to reject such transfer and provided that such juvenile "may be returned to the custody of the Director of Corrections when the governing authority of the training school (the Division is the legal successor to the training schools (Ga. Laws 1963, pp. 81, 100)) determines that the juvenile is unsuited to be dealt with therein." (Ga. Laws 1956, pp. 161, 173.) Accordingly, it is my opinion that by vesting in the State Board for Children and Youth the power to regulate and control the policies of the training facilities under its jurisdiction; and by vesting the Board with the power to accept or reject the transfer of juveniles from the Corrections Department on the basis of such juveniles' suitability to live within such regulations and policies, it was the intention of the General Assembly that transferees be treated by the Board according to its lawful policies with respect to all juveniles in its custody. OPINION 67-20 January 23, 1967 You ask whether banks incorporated under the provisions of "The Regulated Certificated Bank Act" (Ga. Laws 1966, p. 692; Ga. Code Ann. Ch. 13-23) are subject to taxation, including sales taxes, on the same basis and in the same manner as other banks pursuant to Ga. Code Ann. 92-2406 and 92-2406.1. The policy of this State with respect to taxation of banks is set out in Ga. Code Ann. 92-2406.1, as follows: "It is the policy of this State that all taxation shall be equalized as between State and National banks. All banks, banking associations, trust companies doing a banking business, and savings banks, created and incorporated under the laws of this State, shall be subject to taxation on the same basis, in the same manner, to the same extent, and with the same immunities and exemptions as National banks and 26 banking associations created and incorporated under the laws of the United States, and located in this State." (Emphasis supplied) In accord with that policy the Legislature, in adopting "The Regulated Certificated Bank Act," provided that taxation of banks incorporated under the Act would be in the manner provided in Ga. Code Ann. 92-2406 relating to taxation of State and National banks. (Ga. Code Ann. 13-2304) The same policy is further manifested in Ga. Code Ann. 92-3403a C(2) (h), which grants an exemption from sales and use taxes to State banks to the same extent that National banks are exempt. The methods by which Congress has consented for states to tax National banks are set forth in 12 U.S.C.A. 548. Georgia, in adopting the provisions of Ga. Code Ann. 92-2406, has elected to tax the shares of National banks, one of the methods permitted by Congress. When, as pointed out in Goodwin, Tax Collector v. The Citizens and Southern National Bank, 209 Ga. 908 (1953), the State adopts one of the four different methods of taxation consented to by Congress, no other alternative method may be adopted. Since Regulated Certificated Banks are State banks, being created and incorporated under "The Regulated Certificated Bank Act," it is my opinion that they are taxable in the manner provided in Ga. Code Ann. 92-2406. For the above reasons, it is also my opinion that purchases of tangible personal property by such banks are not taxable under the Georgia Retailers' and Consumers' Sales and Use Tax Act. OPINION 67-21 January 23, 1967 You request an official opinion as to whether the State should reimburse utilities for adjusting their facilities installed on streets or roads crossed by interstate and limited-access highways without regard to the date when the utility was installed. In answer to your request, I would call your attention to the case of Mulkey v. Quillian, 213 Ga. 507, 510 (1957), where it states, to wit: " ... the removal and relocation of utility facilities is not a 27 necessary or usual adjunct to the construction of highways. State-aid highways can be and are constructed and maintained without any utility facilities being located on their right-of-way. Utility facilities are placed thereon purely for the convenience of the political subdivisions or authorities controlling the utility and serve no useful or desirable purpose in the construction and maintenance of the highway itself, and serve no convenience of the highway or the Highway Department." The language in the Mulkey case can be applied to utilities installed on streets or roads crossed by interstate and limited-access highways. A utility company is bound to foresee and provide for possible modification and improvement of public highways and streets when they initially lay their facilities thereon or thereunder without any expense for the purchase of an easement. City of Macon v. Southern Bell T. & T. Co., 89 Ga. App. 252 (1953). The General Assembly of Georgia passed an act pertaining to limited-access highways in 1955. (Ga. Laws 1955, p. 559, et seq.; Ga. Code Ann. Ch. 95-17 A). It seems clear to me that the language in the first sentence of par. l, sec. 3, of the Act, which reads as follows: "The State Highway Department of Georgia or the highway authorities of any county or municipality in this State, acting alone or in cooperation with each other or with any Federal, State or local agency, are hereby authorized and empowered to plan, designate, establish, regulate, abandon, alter, improve, maintain and provide limited-access highways, roads or streets for public use whenever such authority or authorities consider that traffic conditions, present or future, justify such special facilities: ..." would put the utility companies on notice that the authorities named in the Act would have authority to establish limited-access highways. The utility companies were bound to foresee the building of limited-access highways after March 7, 1955, the date of approval of the Limited-Access Highways Act. Therefore, it is my opinion that the State cannot reimburse utilities for adjusting their facilities installed after March 7, 1955, 28 on streets or roads crossed by interstate and limited-access highways. OPINION 67-22 January 23, 1967 You have inquired as to whether the employees of the Southern Interstate Nuclear Board are eligible to participate in the Employees' Retirement System of the State of Georgia and as to the proper means of bringing about this coverage. The Southern Interstate Nuclear Compact, approved by Georgia and sixteen (16) other Southern states, specifically authorized the Board to "establish and maintain, independently or in conjunction with any one or more of the party states, a suitable retirement system for its fulltime employees." (Ga. Laws 1962, pp. 505, 507, Ga. Code Ann. 43-1103 (f).) It is, therefore, evident that the Board's powers as set forth in this Compact allow it to contract with the State of Georgia for participation in the Retirement System. Looking then to the powers of the State Retirement System to extend its coverage to these employees, the same Act of the General Assembly by which this State entered into the Compact also made the Board "a state agency" for this purpose and authorized the Georgia State Employees' Retirement System, subject to the approval of the Governor, to contract with the Board in order to provide retirement benefits for these employees. (Ga. Laws 1962, pp. 505, 514, Ga. Code Ann. 43-1112.) Precedent already exists within the Retirement System as presently constituted for coverage of persons not employed by the State itself or its local subdivisions. Civilian employees of the National Guard participate in the retirement program even though they are paid by Federal funds and State employees under certain circumstances can receive credit from the retirement system for employment with the Federal Government or for service in the armed forces. (Ga. Laws 1961, p. 101, Ga. Code Ann. 40-2501 (3) (4); Ga. Laws 1949, pp. 138, 142, as amended, Ga. Code Ann. 402503 (5) (6); Ga. Laws 1949, pp. 138, 144, as amended, Ga. Code Ann. 40-2504 (4) (5) (9).) Early in this State's history, "lthe..Supr~me Court of Georgia . ~ "ff 29 recognized the broad power of the State to enter into compacts not in conflict with the prerogatives of the Federal Government. The Union Branch Railroad Co. v. The East Tennessee and Georgia Railroad Company, 14 Ga. 327, 338-340 (1853). In addition, the United States Supreme Court in a decision upholding its right to consider questions concerning the invalidity of compacts under State constitutions indicated that there was a broad presumption against a compact being in conflict with the constitution of one of the participating states. West Virginia v. Sims, 341 U. S. 22, 71 S. Ct. 557,95 L. Ed. 713 (1950). The specific clause of the State Constitution authorizing the establishment of the Retirement System does not exclude by its language the employees of boards and other entities not within the formal structure of state government but which have been declared to be state agencies. (Art. XIV, Sec. I, Par. II of the Ga. Const. of 1945, Ga. Code Ann. 2-8202.) In light of this provision in conjunction with the two above-cited decisions, it is concluded that there are no ascertainable constitutional objections to the compact and subsequent legislative enactment by which the employees of the Southern Interstate Nuclear Board were made eligible for inclusion in the State Retirement System. There remains for consideration the question of whether this coverage can take place concurrently with or in conjunction with any other retirement program. The question of joint coverage is answered by the fact that the retirement system of Georgia is statutorily authorized to contractually extend coverage to the Board's employees either by itself or in conjunction with other retirement programs. The relevant language consists of a provision empowering the retirement system "to contract with the Board in order to further or facilitate the activities of the Board pursuant to Article I I (f) of the Compact," participation in joint coverage of this type being among the specifically authorized activities. (Ga. Laws 1962, pp. 505,514, Ga. Code Ann. 43-1112; Ga. Laws 1962, pp. 505, 507, Ga. Code Ann. 43-1103 (f).) A different conclusion is reached as to these employees receiving coverage separately from more than one retirement program. The applicable language of the Compact specifically refers in the singular to "a suitable retirement system" and the Board lacks the power to participatfat thel~e ti.[ne in more than one program, as ,,/ i~_,_v(l!i / 30 distinguished from one program jointly maintained by two or more of the states in question. (Ga. Laws 1962, pp. 505, 507, Ga. Code Ann. 43~ 1103 (f).) Hence, in answer to your specific inquiry, it is my official opinion that subject to the above discussed restriction regarding participation in more than one program the employees of the Southern Interstate Nuclear Board are eligible for coverage by the Georgia State Employees' Retirement System and a contractual arrangement approved by the Governor would be the proper means of providing this coverage. OPINION 67-23 January 23, 1967 You requested my opinion as to the granting of exclusives by any employee of the State, or Department, Board or Commission of the State Government. I am pleased to call your attention to the provisions of Ga. Code Ann. 26~5008 which provides as follows: "26~5008. Conspiracies in restraint of free and open competition in transactions with the State.- Every contract, combination, or conspiracy, in restraint of trade or in restraint of free and open competition in any transaction with the State of Georgia or any agency thereof shall be illegal, whether said transaction be for goods, material or services. Every person who shall make any contract, or engage in any combination or conspiracy declared herein to be illegal, shall be quilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year nor more than 20 years." (Emphasis added.) It is therefore my opinion from the above quoted law that any employee of any State Department, Board, Bureau, Commission, Authority, or other State agency by whatever name called, or any other person is strictly prohibited from entering into any contract, or engaging in any combination or conspiracy in restraint of trade or in restraint of free and open competition in any transaction with the State of Georgia or any agency thereof. 31 OPINION 67-24 (Unofficial) January 23, 1967 You wrote concerning a transaction involving a motor vehicle and the tax consequences under the recently enacted Motor Vehicle Tax Act. According to your letter, Roberts Motor Company of Richmond County, Georgia, transferred title to a particular vehicle to the A. P. Clark Motors, Inc. of Orlando, Florida, this transfer occuring on December 30, 1966. On January 5, 1967, A. P. Clark Motors, Inc. transferred the same vehicle back to Roberts Motor Company of Augusta. Roberts Motor Company has now sold the vehicle to a person who makes application for a license plate. Ga. Code Ann. 92-5710 provides "All . . . sales and assignments of property of any kind, made to a void payment of taxes . . . shall be null and void." Ga. Code Ann. 92-5711 provides "The person holding such property, or to whom such conveyance may be made, and the property also, wherever. found, no matter in whose possession it may be, shall be liable for such taxes." See also Ga. Code Ann. 92-6216. A transfer such as you describe which is made to avoid the payment of taxes is void as to the tax in question. The mere fact that property is transferred to another who resides beyond the tax jurisdiction on tax day will not be effective where the transfer is made to defeat the collection of taxes. In the absence of any other information, it would appear that the transfer by Roberts Motor Company to the dealer was made to avoid the payment of taxes and void. Property taxes would therefore be due on the vehicle in Richmond County, Georgia. OPINION 67-25 (Unofficial) January 23, 1967 You ask whether savings and loan associations must pay ad 32 valorem taxes on their motor vehicles prior to obtaining license tags pursuant to the provisions of Ga. Laws 1966, page 517, or whether these motor vehicles will be taxed as a part of net worth under Ga. Code Ann. 92-179. Congress has restricted the taxation of federal savings and loan associations but only to the extent that they cannot be taxed at a greater rate than similar local units are taxed. 12 U. S. C. A., 1464 (h) provides, in part, as follows: " . . . . no State, Territorial, County, municipal, or local taxing authority shall impose any tax on such Associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and home financing institutions." The Intangible Property Tax Act of 1953 (Ga. Laws 1953, Nov.Dec. Sess., pp. 379-390) provided that both federal and State savings and loan associations would return its net worth at full market value for ad valorem taxation, a method similar to the one utilized in taxing National banks. This Act was divided into three parts, each separately numbered. Part I dealt with taxation of certain intangibles and Parts II and II I dealt with the taxation of savings and loan associations. In Part Ill the General Assembly explained the tax on net worth, stating that savings and loan associations shall have the same immunities and exemptions as National banks. However, in Fulton County Federal Savings and Loan Association v. Simmons, 210 Ga. 621 (1954), the court held. that the words "same immunities and exemptions" as National banks did not apply to Part I of the Act imposing an ad valorem tax on long term notes. It was pointed out in the concurring opinion, however, that the long term notes secured by real estate would not be computed as a part of the net worth because an ad valorem tax was paid on such notes under Part I of the Act. In adopting the 1966 Act classifying motor vehicles as a separate class of property and requiring payment of ad valorem taxes on such vehicles prior to obtaining license tags, the General Assembly did not exclude any motor vehicles classified thereunder except those not subject to taxation in this State. Keeping in mind the Court's decision in Fulton County Federal Savings and Loan Association, supra, that long term notes secured by real estate held 33 by such institutions are taxable under the Intangible Tax Act of 1953, it appears that the General Assembly intended for motor vehicles owned by these institutions to be taxed in the manner provided in the 1966 Act. For the above reasons, it is my opinion that savings and loan associations must pay the ad valorem taxes on its motor vehicles prior to purchasing license tags as required by Ga. Laws 1966, p. 517. OPINION 67-26 January 24, 1967 You requested an official opinion as to whether the conviction of a person in a Superior Court of this State for "having liquor" makes such person unqualified to hold office under the laws of this State. The question partakes of a segment of the law from which certain basic premises have evolved. We begin with a presumption of eligibility, for as stated in Patten v. Miller, 190 Ga. 123, 139 (1940): "Among the rights of citizens, as declared in the Code, are the right to hold office unless disqualified by the constitution and laws, and the right to appeal to the courts. Code, 79-205. All citizens are entitled to exercise all their rights as such, unless specifically prohibited by law . . . . So the right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law." (Citing numerous authorities.) In McLendon v. Everett, 205 Ga. 715 (1949), this principle was recognized and the disqualifications from holding public office were stated to be the Constitution, Art. I I, Sec. I J, Par. I (Ga. Code Ann., 2-801); Art. II, Sec. IV, Par. I (Ga. Code Ann., 2-1001); Art. III, Sec. IV, Par. VI (Ga. Code Ann., 2-1606); Art. VIII, Sec. III, Par. VI (Ga. Code Ann., 2-5606); and Ga. Code Ann., 79-30 l, 89-l 0 I. Of these, we are only concerned with the first, Ga. Code Ann., 2-80 l, which provides: ".... The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote or 34 hold any office, or appointment of honor, or trust in this State, to-wit: lst. Those who shall have been convicted in any court of competent jurisdiction oftreason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons." If conviction of the crime of "having liquor" renders a person unqualified to hold public office, it would be by virtue of the clause specifying convictions of "any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary. . . ." Hence, we have two criteria to measure such a crime, moral turpitude and imprisonment in the penitentiary. In conjunction with the imprisonment criterion, we should consider the following Georgia Code Sections: "26-/01. (2 P.C.) 'Felony' and 'misdemeanor' defined.The term felony means an offense, for which the offenper, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise. Every other crime is a misdemeanor. (Cobb, 780.) "102-/03. (5; 2 P.C.) Meaning of certain words.-The following meanings shall be given to the following words in all statutes, unless a different meaning is apparent from the context: ... "Penitentiary means any place where felony prisoners exclusively are confined at hard labor under the authority of any law of this state. (Acts 1957, pp. 477, 482.) "27-2506. (/065 P.C.). Misdemeanors, how punished.Except where otherwise provided, every crime declared to be a misdemeanor shall be punished by a fine not to exceed $1,000, confinement in the county or other jail not to exceed six months, to work on the public works in such public works camp or other appropriate institution under the jurisdiction of the State Board of Corrections not to exceed 12 months, any one or more of these punishments in the discretion of the trial judge. (Acts 1865-6, p. 233; 1878-9, p. 54; 1895, p. 64; 1908, p. 119; 1956, pp. 161, 168; 1957, pp. 477, 482.)" 35 Prior to the 1957 Act (Ga. Laws 1957, pp. 477, 482), "penitentiary" was defined in Ga. Code Ann. 102-103 as ". . . any place where felony convicts are confined at hard labor, under the authority of any law of this State." See also Howell v. State, 164 Ga. 204, 210 (1927). Apparently, the penitentiary imprisonment requirement of the above constitutional provision denotes felonies as distinguished from misdemeanors. Therefore, the crime of "having liquor" is eliminated as a crime causing disqualification to hold public office if it carried, at the time of commission, only misdemeanor punishment and I assume that it did, although I am not advised as to the specific law under which an indictment was returned. See in this connection Ga. Code Ann., 58-1059 and 58-1077 (Ga. Laws 1937-38, Extra Sess. pp. 103, 121, 123). Furthermore, turning to the moral turpitude criterion, there are numerous court decisions in this State holding that violations of liquor laws are not crimes involving moral turpitude. Wheeler v. State, 4 Ga. App. 325 (1908); Edenfield v. State, 14 Ga. App. 401 (1914); Reid v. State, 49 Ga. App. 429 (1934); Duke v. Meyers, 86 Ga. App. 271 ( 1952); and Rewis v. State, 109 Ga. App. 83, 85 (1964). An excellent discussion of the meaning of the words "moral turpitude" is found in Hughes v. State Board of Examiners, 162 Ga. 246,255 (1926). See also Huj]'v. Anderson, 212 Ga. 32(1955). In view of the foregoing, it is my opinion that the conviction of the crime of "having liquor" does not render a person disqualified from holding public office vnder the laws of this State. OPINION 67-27 (Unofficial) January 24, 1967 You requested my unofficial opiniOn on whether or not commercial fishing is allowable on the Sabbath Day. Your attention is invited to the provisions of Ga. Code Ann. 266908 (Ga. Laws 1907, p. 123, as amended by Ga. Laws 1961, p. 157) which provides as follows: "26-6908. Commercial fishing on Sunday. Any person who shall fish or attempt to catch any kind of fish by employing any equipment or method which requires the sanction of any commercial fishing license on the Sabbath day shall be guilty 36 of a misdemeanor, and upon conv1ctwn thereof, shall be punished as for a misdemeanor." As I interpret the provisions of the above-quoted Code section, it is unquestionably clear that commercial fishing is prohibited on the Sabbath Day. OPINION 67-28 (Unofficial) January 24, 1967 You ask whether the Tax Commissioner is entitled to the fees for the sale of license plates in addition to his salary as provided in an Act approved March 31, 1965 (Ga. Laws 1965, p. 3068). Section 3 of an Act approved March 9, 1955 (Ga. Laws 1955, pp. 659, 660), as amended by an Act approved March 4, 1957, provides that the Tax Commissioners of the several counties of this State are made agents of the State Revenue Commissioner for the registration of motor vehicles. Subparagraphs (b) and (c) provide as follows: "(b) The amount of commission permitted as compensation to such agents under this Act shall be fifty cents (50) per license plate for each of the first four thousand (4,000) issued during any calendar year, and twenty-five cents (25) for each license plate issued in excess of four thousand (4,000). "(c) Any other provisions of any law of this State, whether general, special or local, to the contrary notwithstanding, the fees prescribed herein shall be retained by the agent appointed by the State Revenue Commissioner under this Act, and shall be his own personal compensation for the services rendered to the State Revenue Department in the administration of this Act, regardless of whether such agent may otherwise be an elected or appointed official of the county, and regardless of whether as such county officer he is compensated for the performance of the duties of such office on a fee basis or salary basis, or combination thereof. It shall be his duty, however, as agent for the State Revenue Commissioner in the administration of the purposes of this Act, to compensate any additional personnel which may be necessary to enable said agent to effectuate the provisions of this Act and the rules and 37 regulations promulgated hereunder by the State Revenue Commissioner." "If such tax commissioner, tax collector or tag agent shall be a salaried employee of the county and at a salary in excess of $7,999.00 per annum, the amount of fees so collected shall go into the general treasury of the county and in such cases it shall be the duty of the governing authorities of the county to furnish to said tax commissioner, or tax collector or tag agent such additional clerical help necessary to carry out the provisions of this Act." An Act approved March 31, 1965 (Ga. Laws 1965, p. 3068), and subsequently approved by a referendum vote provided for a salary for the Tax Commissioner beginning January 1, 1966, in the amount of $6,500.00 per year. Section 7 of the Act provides in part as follows: "Section 7. It is specifically provided that the salary provided herein for the tax commissioner shall be in lieu of all fees, commissions, costs, fines, emoluments and perquisites of whatever kind, including those commissions allowed by an Act approved March 9, 1955 (Ga. Laws 1955, p. 659), as amended, relating to the sale of motor vehicle license plates by local tax officials, notwithstanding the fact that such services for which the commissions are derived may have been performed in the capacity of an agent for the State Revenue Department." It was also provided in Section 7 of the Act that should the Tax Commissioner act as agent of the State Revenue Commissioner for the sale of license plates, the governing authority of the county is authorized to make available to him an additional sum up to $1,000.00 per year. We are faced with a conflict between the Act placing the Tax Commissioner on salary and the Act providing for the compensation of agents of the State Revenue Commissioner for the sale of license plates. The Salary Act being a Special Act, and the Act providing for the compensation of tag agents being a General Act, it would appear that the General Act would control. Art. I, Sec. IV, Par. I of the Constitution, Ga. Code Ann. 2-40 l. The Supreme Court, however, in the cases of Laurens County v. Keen, 38 214 Ga. 32, and Clark v. Kaylor, 219 Ga. 256, has held that Art. I, Sec. IV, Par. I of the Constitution must be construed with Art. XI, Sec. II, Par. II of the Constitution (Ga. Code Ann. 2-7902) which provides that county officers may be on "a fee basis, salary basis, or fee basis supplemented by salary in such manner as may be directed by law." The Court concluded that the salaries of Tax Commissioners may be fixed by the General Assembly as it sees fit and that a subsequent Act of the General Assembly fixing the compensation of a Tax Commissioner of a particular county takes precedence over any preceding general law. See Clark v. Kaylor, supra, and Laurens County v. Keen, supra. Following this rule, the Act providing for compensation of the Tax Commissioner of Madison County is later in time than the Act providing for compensation of tax commissioners acting as agents of the State Revenue Commissioner for the sale of license plates. Therefore, the Salary Act being the last expression of the will of the legislature is controlling and all fees for the sale of license plates by the Tax Commissioner should be paid into the county treasury in accordance with said Act. OPINION 67-29 January 25, 1967 You ask the following questions: (l) Whether the State Board of Education may contract with private educational institutions for vocational training by such institutions of individuals selected for the same under the federal "Manpower Development and Training Act of 1962," as amended? (2) If the answer to question one is in the affirmative, may the State Board of Education match federal monies which such schools may receive? (3) If the answer to question one is in the affirmative, would the relevant documents forwarded with your letter be legally adequate in form to constitute a binding contract with any such private educational institution? (4) Would the other relevant documents accompanying your letter be legally adequate in form to constitute a binding contract 39 between the State Board of Education and the State Board of Corrections respecting a proposed agreement for the former to provide vocational education services at the latter's Buford, Georgia, institution? My opinion respecting these inquiries, along with the reasons therefor, is as follows: OPINION (l) I am of the opinion that under the existing laws of this State the State Board of Education would not be authorized to enter into a contract with private educational institutions for the vocational training therein of those individuals selected for the same under the "Manpower and Development Act of 1962," as amended. (2)(3) The necessity of reply to questions two and three is obviated by the answer to question one. (4) The documents you forwarded with your letter which relate to a proposed agreement between the State Board of Education and State Board of Corrections for the former to provide vocational educational services in the latter's Buford, Georgia, institution, while not improper as to subject matter, would, insofar as a legal contract is concerned, be deficient in form in various important respects. DISCUSSION ( l) It is axiomatic that the powers of public officers and boards are limited to those defined by law, Ga. Code Ann. 89-903, with this limitation being particularly applicable where the disbursement of public funds is concerned. See e.g. Cole v. Foster, 207 Ga. 416, 418 (1950), Freeney v. Geoghegan, 177 Ga. 142 (l) (1933). While the statutory powers of the State Board of Education are broad, both respecting education generally and respecting vocational education in particular, the basic statutory design in the gr.ant of such powers has manifestly been one of vesting the State Board of Education with the authority and responsibility of making quality education available in the public schools of this State. See, e.g. Ga. Code Ann. 32-602, 32-603. Thus even where the State Board is expressly authorized to contract and cooperate with private institutions, such authority is limited to situations where the contractual objective is improvement and strengthening of the public school system of this State. E.g. Ga. Code Ann. 32-652. I fmd nothing in Chapter 32-22 (Vocational Education) which would 40 authorize the State Board to purchase vocational education services from private institutions. To the contrary this Chapter refers to the acceptance of federal funds for the maintenance and operation of State trade, industrial or vocational schools. E.g. Ga. Code Ann. 32-2220. The same basic intention of the General Assembly may further be seen in the more recently enacted Minimun Foundation Program of Education, which also deals, inter alia, with vocational education. See Ga. Code Ann. 32-630 thru 32-633. In reviewing all of these statutes, the only language which to my way of thinking could even remotely be argued as vesting the State Board of Education with authority to contract with private institutions for the offering of vocational training in and by such institutions (as opposed to training in public schools) would be that portion of Ga. Code Ann. 32-631 which declares it to be the policy of the State of Georgia that: "Federal funds for vocational education shall be expended in carrying out the State plan of vocational education in keeping with the requirements of Federal laws relating to vocational education." It could conceivably be argued that if federal law required the State Board of Education to enter into such contracts with private educational institutions as a condition of receiving federal financial grants under the Manpower Development and Training Act, this provision of the Georgia Code would be authority for the State Board to enter into such contracts in order to receive the federal funds. Examination of the relevant federal statutory provisions and regulations, however, amply shows that while a State agency is indeed "authorized" to employ a plan which utilizes the services of private educational institutions, it is not "required" to do so. Section 231 of the Manpower Development and Training Act of 1962, as presently amended, reads in pertinent part as follows: "Such State agencies shall provide for such training through public educational agencies or institutions or through arrangements with private educational or training institutions where such private institutions can provide equipment or services not available in public institutions; or . . ." (listing various other situations where private institutions may be utilized). 78 Stat. 78 (emphasis added) That the italicized word "or" denotes the alternative rather 41 than conjunctive is clearly recognized by a publication of the United States Department of Health, Education and Welfare designated "C. L. 4093, Revised February 15, 1966," which expressly refers to the fact of certain states being unable because of "legal or other barriers," to contribute to training costs for MDTA projects assigned to private institutions, as being one reason for a proposed 1966 Amendment to the Act to authorize the Secretary of Health, Education and Welfare, upon determination of the existence of certain specified conditions, to contract directly with private education institutions as well as utilize the services of such institutions indirectly through state agencies responsible for vocational education. (2) In your final question, you refer to the development of a project whereunder the State Board of Education would enter into an agreement with the State Board of Corrections to provide vocational education training at the latter's penal institution at Buford, Georgia. Such agreements, of course, are expressly authorized by Ga. Laws 1966 pp. 238-39. As to the documents you submit for evaluation as to their legal sufficiency as a binding contract, however, I would consider the same to be inadequate in various very basic respects. To start with, a contract must obviously specify exactly who the parties are to be. In Section II I A of the relevant documents which you submitted with your letter, a multitude of agencies in addition to the State Board of Education and State Board of Corrections are mentioned. While one would ordinarily think that such a contract would be between the latter two parties alone, especially in light of Ga. Laws 1966 pp. 238-39, it is not clear whether all of these other entities are also intended to be actual parties to the contract, or, if they are, what the legal consideration necessary to bind them would be. This is further confused by the fact that from the signatory portion of the document it would appear that only the two State Boards plus the Georgia State Employment Service are to be actual parties. Moreover, it might in general be said that while certain portions of the documents you have submitted are sufficiently specific to set forth precise legal duties and obligations, many other portions are indefinite, vague, and appear intended more as a general expression of desired objectives or goals than a detailing of exactly what any specified party shall do. In addition, the documents do not show the term for which the contract shall continue to exist. 42 OPINION 67-30 (Unofficial) January 25, 1967 I have received your letter in regards to radio receivers monitoring Civil Defense messages on Sheriff and State Patrol frequencies. I can find no State law that prohibits you from monitoring Civil Defense messages which are periodically transmitted on sheriffs frequencies. However, as to using the wave length of the radio system adopted by the Department of Public Safety or the State Patrol, I would like to call your.attention to Ga. Code Ann. 92A-9903 as amended. Said section reads as follows: "It shall be a misdemeanor and punishable as such by the courts of this State as provided by section 27-2506, for any person, persons, firm or corporation to use the same wave length of the radio system adopted by the Department of Public Safety without the prior written authorization of the Director or to do any act interfering with the proper receipt or transmission of information relating to the Department of Public Safety or any division thereof." From the above it would be my opinion that in order for your Unit to use the wave length of the radio system adopted by the Department of Public Safety, you should first obtain written authorization from the Director thereof. Under the factual situation as related in your letter, I do not foresee any difficulty in obtaining such written authorization. OPINION 67-31 January 26, 1967 You refer to Ga. Code Ann. 74-421, which prohibits any person or organization not licensed as a child-placing agency from advertising, either through public medium or by private means including oral statements, that they will adopt children or place them in foster homes. You ask whether the provisions of Ga. Code Ann. 74-421 could be interpreted: (1) So as to prohibit an attorney from responding positively to a request from an unmarried mother that he assist her in placing her child with a prospective adoptive couple? 43 (2) So as to prohibit a physician (e.g. obstetric:ian) from responding positively to such a request? (3) So as to prohibit physicians and lawyers from spreading by word of mouth, information to the effect that they occasionally know unmarried mothers seeking placement for their offspring and that they therefore would welcome inquiries from prospective adoptive parents? In your letter, you state that the confusion seems to relate primarily to the question of what kind of "oral statement" would constitute "advertisement." You also ask for an opinion as to whether it would be legal for an attorney to act as agent for both the unmarried mother and the individuals seeking to adopt the child. My opinion regarding the above questions along with the reasons therefor are as follows: OPINION (l) Ga. Code Ann. 74-421 could not be interpreted so as to prohibit even a positive response to an unmarried mother's request for assistance in placing her child with an individual or couple desiring to adopt the same. Hence, questions one and two must both be answered in the negative. (2) Such Code Section would in my opinion probably prohibit individuals, including lawyers and physicians, from a course of action consisting of spreading information orally that they occasionally know unmarried mothers and welcome inquiries from individuals desiring to adopt illegitimate children. (3) .Inasmuch as prospective adoptive parents and a consenting unmarried mother are not, ordinarily, in the position of adversaries, I am aware of no law which would be violated by an attorney who acts for both parties at the same time. DISCUSSION (1) Ga. Code Ann. 74-421 provides: "It shall be unlawful for any person or persons, organization, corporation, hospital, or association of any kind whatsoever which has not been established as a licensed child-placing agency by the State Department of Family and Children Services or by one of the superior courts to advertise to any 44 periodical, by radio, or any other public medium, or by any private means including letters, circulars, hand-bills, and oral statements, that they will adopt children or place them in foster homes, or hold out inducements to parents to part with their offspring, or in any manner knowingly to become party to the separation of any child from its parents or guardians except through the provisions of this Chapter. (Acts 1941, p. 309)" You state in your letter that some confusion exists concerning the question of what sort of "oral statement" constitutes "advertisement" and ask whether even a positive response to an unmarried mother's request for assistance in placing her child with a person or couple desiring to adopt the same might violate the statute. In my opinion, the answer, which applies to your first and second questions, is clearly in the negative. The word "advertisement" is generally understood to be a communication to the general public, or a notice given in a manner designed to attract public attention. Blacks Law Dictionary, "Advertisement," p. 74 (4th Ed.) By no stretch of the imagination would a reply to an individual's question, which is not otherwise publicized, amount to an advertisement. This is especially true when one considers that penal statutes are strictly construed against the State. (2) The same general definition of the word "advertisement'' would seetn to dictate that where an individual, as a course of action, spreads information by word of mouth to various people with whom he comes into contact announcing that he occasionally knows unmarried mothers and would welcome inquiries from persons desiring to adopt their illegitimate children, such oral statements would be an "advertisement" and violative of Ga. Code Ann. 74-421. (3) I am aware of no statute which would be offended by an attorney who acts for both a consenting unmarried mother and parents seeking to adopt her illegitimate child. Nor, in view of the fact that such parties would ordinarily not be in an adversary position, would there seem to me to be any common law conflict of interest involved. OPINION 67-32 (Unofficial) January 26, 1967 You have asked for our unofficial opinion on whether the City of 45 Warner Robins may appropriate public monies as "dues" to the Warner Robins Chamber of Commerce in the absence of any provision therefor in the city charter and in view of Art. VI I, Sec. V, Par. I ofthe Georgia Constitution (Ga. Code Ann. 2-5801). A municipal corporation is without authority to donate its money or property unless authorized by its charter or some general law of the State. Such a power is not conferred by a general-welfare provision in a charter. A /len, et a!. v. Muskett, 221 Ga. 665, 672 (1966); Miller v. City of Cornelia, 188 Ga. 674, 676 (1939). Furthermore, the Constitution of Georgia, Art. VII, Sec. V, Par. I provides that: "The General Assembly shall not authorize any . . . municipal corporation . . . to appropriate money . . . for any corporation, company, association, institution or individual except for purely charitable purposes." Thus, even if the city charter conferred a power upon the city authorities to appropriate money to the Chamber of Commerce, such grant would be unconstitutional unless the appropriation is clearly earmarked for charitable purposes. The payment of "dues" to the Warner Robins Chamber of Commerce, a non-charitable institution, would therefore fall within the constitutional prohibition. Accordingly, it is my unofficial opinion that the City of Warner Robins has no authority to appropriate public monies to the Warner Robins Chamber of Commerce. OPINION 67-33 (Unofficial) January 27, 1967 You asked for reference to the source of material necessary to answer the following questions: "1. How, or by what authority is the General Assembly permitted or prohibited to enact general and special laws relating to certain classes of subject matter; when must the Legislature resort to constitutional amendments when dealing with certain classes ofsubject matter? "2. What classes of subject matter must be referred to only in general or focal laws; what classes only in constitutional amendments? 46 "3. May statutes be passed relating to subjects not specifically prohibited, or permitted, or mentioned in the State Constitution; would a constitutional amendment be necessary to provide a basis for legislating a subject not specifically permitted in the constitution?" I believe the following citations will assist you in finding the answers to your questions: 1. The legislative power of the State is vested in the General Assembly. (Ga. Canst. Art. Ill, Sec. I, Par. I; Ga. Code Ann. 2-1301). However, the power of the General Assembly is limited by the provisions of the Georgia Constitution and the Constitution of the United States and legislative Acts in violation of said provisions are void (Ga. Canst. Art. I, Sec. IV, Par. II; Ga. Code Ann. 2-402). Accordingly, in order to pass legislation which contravenes any provision of the Constitutions of Georgia or the United States, it would first be necessary to amend said provision to remove the conflict. 2. As previously stated, the legislative power of the State is vested in the General Assembly. Thus, all legislation must stem from the General Assembly regardless of the subject matter thereof. In addition, if there is a conflict between proposed legislation and a constitutional provision, such legislation must be preceded by a constitutional amendment removing the conflict from the constitution. 3. In answer to your third question, there is a presumption which favors the constitutionality of laws and the judiciary will not declare a law unconstitutional unless such law manifestly infringes the constitution or violates the rights of citizens. Franklin v. Harper eta!, 205 Ga. 779, 790 (1949). OPINION 67-34 (Unofficial) January 27, 1967 You inquired regarding the eligibility of two interns and one resident in your employ for a license to practice medicine. You state that all three are graduates of foreign medical schools. Specifically, you have asked if, upon completion of a one year approved internship, these individuals will be eligible to apply for 47 licensure to practice medicine without the necessity of taking the regular examination given by the State Board of Medical Examiners and whether the rule would be otherwise if they were graduates of American medical colleges. Ga. Code Ann. 84-907, which regulates licensure of physicians, is so fraught with ambiguity as to make any meaningful interpretation thereof an impossibility. At best, it is an ill drawn piece of legislation the intent of which is unclear. Because of this fact a bill is being introduced in the present session of the Legislature which will repeal this section in toto and, hopefully, substitute therefor a bill which will spell out with particularity the requirements for obtaining a license to practice medicine in Georgia. Implicit in your letter, however, is the fact that these physicians are not citizens of the United States. If such is the case, they would be ineligible to receive a license to practice medicine in Georgia (Ga. Code Ann. 84-925) except through comity (Ga. Code Ann. 84-926). Should this new bill be enacted by the General Assembly, I will be glad, upon request, to furnish you with an interpretation of same. OPINION 67-35 (Unofficial) January 27, 1967 You requested information concerning the marriage laws of this State and in particular common law marriage. For reference by your attorney, however, the marriage laws of the State of Georgia are found in Title 53 of the Georgia Code Annotated. While there is no statute relating to common law marriage in Georgia, such marriages have long been recognized by the courts (Allen v. The State, 60 Ga. App. 248 (1939)). A marriage consummated without a ceremony or a license is known as a common law marriage, and while valid, is not looked upon with favor. Such a marriage must be between persons who are otherwise able to contract a valid marriage in Georgia and who actually intend to be, or hold themselves out to be, husband and wife. A mutual agreement to be husband and wife by parties able to contract, followed by cohabitation, is recognized as a valid common law marriage. 48 Such a marriage is not defined in terms of length of time of relationship, but rather intent of the relationship. A relationship illicit in its inception where such intent of marriage is not present is presumed to be illegal no matter how long the relationship continues. If a cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of cohabitation. A common law marriage is sometimes difficult to establish, especially when questions of inheritance are involved, or the legitimacy of children called into question. OPINION 67-36 (Unofficial) January 30, 1967 You inquired whether a duly elected councilman for the City of Cumming can legally serve as the Clerk of the City of Cumming. The Ga. Code Ann. 69-20 I, as amended, provides that "a councilman . . . of a municipality shall be ineligible to hold any other office during the term of office for which such councilman ... was chosen:" Of course, a person may resign as councilman and then enter another municipal office or resign from one municipal office and run for any other municipal office, provided he is qualified for said office. Thus, pursuant to the above code section, a councilman of the City of Cumming cannot serve also as the City Clerk since by doing so he would be holding". . . another municipal office . . ."which Ga. Code Ann. 69-20 I expressly prohibits. In addition to the above code section, the various Acts under which the City of Cumming now exists point to the same conclusion. In Ga. Laws 19\0, pp. 506,509, the following is found as Section 10, to wit: "Be it further enacted, that said Board shall select from among their own members a clerk whose duty it shall be to keep a correct minute and record of all meetings and proceedings of said council . . . .'' 49 Thus, in the 1910 charter for the Town of Cumming, provision was expressly made whereby the City Clerk was selected by the Board of Councilman " ... from among their own members " However, in Ga. Laws 1935, pp. 1001, 1012, Section 17, whereby the Town of Cumming was changed to the City of Cumming, provision was made concerning the Clerk as follows: " . . . the City Council may also at said meetings elect for said city a . . . Clerk . . . and they shall have power to fix and provide for the salaries or compensation of the officers or employees so elected ....And the City Council of Cumming shall have power and authority to suspend and remove such officers from office, or impose fines on said officers for gross neglect or malfeasance, after a fair and impartial trial." Therefore, in the charter of the Town of Cumming as contained in Ga. Laws 1910, it was provided that the Councilmen selected from their members a Clerk; whereas the 1935 Act omitted such provision, but expressly provided that the City Council should elect said Clerk and that he was to be an officer of the City of Cumming subject to being suspended or removed by the Council. Sections I and 58 of the 1935 Act are repealer clauses. Thus, the provision in the 1910 Act providing for the Clerk to be selected from among the members of the Board of Councilmen is expressly repealed and the clear interpretation of the 1935 Act is that the Clerk shall not be a member of the City Council. Therefore, it is my unofficial opinion that Ga. Code Ann. 6920 I, as well as Ga. Laws 1935, p. I00 I, are controlling in this matter and that a Councilman of the City of Cumming is ineligible to hold the office of Clerk of the City of Cumming while still holding the office of Councilman. OPINION 67-37 January 31, 1967 I wish to acknowledge receipt of a letter from the former Director of the State Board of Corrections requesting an official opinion concerning a sentence imposed on a female who is presently confined in the Floyd County jail. The sentence, imposed by the court, reads as follows: 50 "Whereupon, it is considered, ordered and adjudged by the Court that the Defendant be confined at work in the Georgia Training School for Girls, or elsewhere as the law directs for a period of 12 months." This sentence was imposed after the jury returned a verdict of guilty on the charge of assault and battery, and it is our understanding that the prisoner was over the age of 17 years at the time of her conviction. Specifically, Mr. Burson asked this Department what is meant by the language "Georgia Training School for Girls, or elsewhere as the law directs." Prior to 1963, the Georgia Training School for Girls was under the direction and supervision of the Department of Corrections. However, Ga. Code Ann. Ch. 99-2 (Ga. Laws 1963, p. 81, et seq.), entitled the "Children and Youth Act," removed the Training School from the supervision of the Department of Corrections and transferred it to the Division for Children and Youth within the Georgia Department of Family and Children Services. Ga. Code Ann. 99-210. Construing the "Children and Youth Act" in its entirety, it is evident that the Training School is not a penal institution but is an instrument of the Act whose purpose is "to promote, safeguard and protect the well being and general welfare of children . . ." Ga. Code Ann. 99-202. It is also evident from the Act that one cannot be "sentenced" to the Training School for inasmuch as the Division is virtually autonomous (Ga. Code Ann. 99-209(a)( I)) and may discharge those within its care when it deems it to be proper to do so (Ga. Code Ann. 99-213(d)(l), (3), (5)), or order one's confinement or reconfinement at will (Ga. Code Ann. 99213(d)(2), (3)) which could result in one's committal until age 21 (Ga. Code Ann. 99-213(j)), it is clear that a "sentence" would have little meaning or effect. The only court which may "sentence" a child or youth to the Division is a juvenile court (Ga. Code Ann. 99-213, 99-203(q) ) and even then, only after the Division "accepts" him (Ga. Code Ann. 99-213) at a place of detention approved, established or designated by the Division (Ga. Code Ann. 99-213(a) ). It is my opinion that the court in the instant case could not sentence one to the Georgia Training School for Girls as such an institution does not exist within the Georgia penal system, and the 51 institution which docs exist by that name does not have as its purpose the incarceration of those convicted of the criminal laws of this State. (This is consistent with the Juvenile Court Act which provides that any action taken against a child by virtue of his being before a juvenile court does not amount to a criminal action or an adjudication as a conviction. (Ga. Code Ann. 24-2418) ). In order to give meaning and effect to the court's sentence, it is necessary to construe"' ... or elsewhere as the law directs ...." Assault and Battery is punishable as for a misdemeanor (Ga. Code Ann. 26-1401, 26-1402, 26-1408). Ga. Code Ann. 27-2506 provides: "Except where otherwise provided, ... a misdemeanor shall be punished either: * * * (b) By confinement under the jurisdiction of the State Board of Corrections in the State Penitentiary, in a Public Works Camp, or such other Institution as the Director of Corrections may direct, for a determinate term of months which shall be more than 6 months but not to exceed a total of 12 months." It is our opinion that the language "'or elsewhere as the law directs," supra, confers upon the Director the authority to incarcerate the prisoner in any suitable State institution, except as above noted, which is under the supervision of the Department of Corrections. OPI:\'ION 67-38 January 31, 1967 You attached certain material relating to a so-called "'Employee Thrift Plan" and requested an official opinion as to whether it is considered an exempt transaction under the Georgia Securities Act. An employee under the plan authorizes his employer to deduct from his compensation and pay to the Trustee named in the plan a certain percent of his total compensation. The money is paid into two trust funds maintained by the Trustee. One of these funds is invested in the Company's Common Stock, which is purchased by the Trustee on a national securities exchange or elsewhere, as the Trustee may select. The second fund called the "Diversified Fund" is invested in certain common stocks of corporations other than the company. 52 The material submitted indicates that some of the secunttes purchased with funds from the "Diversified Fund" are fully guaranteed by the United States of America. These, of course, are exempt under the Act (Ga. Code Ann. 9 97-106 (a)). It is not shown that the common stock of the company or other corporations in which both funds are invested arc fully listed, or regularly approved for full listing upon the issuance thereof, upon the New York Stock Lxchangc, the American Stock exchange, the Pacific Coast Stock exchange or any other stock exchange approved by you as Securities Commissioner. If they are not so listed and do not come within any of the other exemptions listed in the Act (Ga. Code Ann. 97-106) they, of course, are not exempt from the Act if they otherwise come within its terms, that is, if they are sold or offered to be sold within this State. The material submitted is insufficient to determine this. OPINION 67-39 January ~I, 1967 You have inquired as to whether a Solicitor is entitled to a fee for services rendered in filing a brief in the Supreme Court in a certiorari from the Court of Appeals. The Supreme Court in specifically considering the question of a Solicitor's fees noted that "when a public officer claims fees for his services he should be able to show clear authority of law in support of that claim to entitle him to have it allowed." Thomas v. Thomas, 61 Ga. 71, 72 ( 1878 ). In this instance, the governing provision of Georgia law grants the Solicitor a fee "for services in the Supreme Court or Court of Appeals" (Cobb, pp. 353, 362, 363, 456, as amended; Ga. Code Ann. 24-2904). In light of the standard which has been set by the Court in interpreting the applicable rule of law, the determinative question is the scope of activity covered by the term "services" and whether it embraces the filing of a brief by the Solicitor in an instance of certiorari to the Supreme Court. The concept of attorney's "services" has been judicially defined, extensively considered and the conclusion reached that all activities by the attorney in a case embodying a vast variety of specific tasks represent services rendered by him in the particular matter in dispute. Claxton l!t a/. v. 53 Johnson County, 194 Ga. 43, 48-49 ( 1942 ). On the basis of this broad view taken by the Court of an attorney's services, I conclude that any filing of a brief in the Supreme Court constitutes to a varying extent the rendering of services in that Court. Therefore, in answer to your question as specifically worded it is my official opinion that a Solicitor is entitled to the statutorily allowed fee for services rendered in the Supreme Court in all instances of certiorari in which he files a brief in that Court. OPI~ION 67-40 (Unofficial) February I, 1967 You wrote relating to the appellate practice in Georgia regarding orders of commissions. Specifically you have asked: (I) In the case of an appeal from the order of your commission to the appellate court structure of your state, is the commission an original party, an intervenor or an amicus curiae? (a) Under what authority? (2) Does the Commission have a right to appeal from the first appellate court to the court of last resort in your state? (a) Under what authority? The rules governing administrative agencies in general are found in the Georgia Administrative Procedure Act (Ga. Laws 1964 pp. 338, 339; 1965 pp. 283, 284; Ga. Code Ann. s 3A-IOI et seq.). That Act, however, exempts from its coverage the General Assembly, the judiciary, the Governor, the Board of Pardons and Paroles, the State Board of Probation, the Board of Bar Examiners, the Board of Corrections, the State Board of Workmen's Compensation, the Public Service Commission, all Public Authorities, the State Personnel Board, the State Supervisor of Purchases, 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. Thus, in order to determine the proper procedure for appealing from the orders of each of the above-named exceptions to the Administrative Procedure Act, one would have to consult the constitutional and statutory provisions relating to such agencies. 54 I understand from your letter, however, that you are interested in the regulation of commerce which in Georgia, would fall within the jurisdiction of the Georgia Public Service Commission. The Georgia Public Service Commission has jurisdiction and general supervtsory powers over intrastate railroads, street railroads, docks, wharves, terminals, cotton compress corporations or associations, telegraph and telephone companies, gas and electric power companies, (Ga. Code Ann. 93-301 et seq.) motor contract carriers, (Ga. Code Ann. 6~-501 et seq.) and motor common carriers (Ga. Ann. Code 6~-601 et seq.). The proper remedy for appealing from an order of the Georgia Public Service Commission is by a proceeding for an injunction against the Commission and its members. (GI!orgia Poll'a Conzpanr L Gi!orgia Public Savicl! Com111ission, 211 Ga. 223, ~5 S.E.2d 14 (1954)). Jurisdiction over injunction proceedings is vested in the Superior Courts (Ga. Code Ann. 24-2615 .) An appeal of a decision of the Superior Court in an equity case such as one involving injunction lies directly to the Supreme Court of Georgia, which court is the highest appellate court of the State. (Ga. Const. Art. VI, Sec. II, Par. IV, Ga. Code Ann. 2-3704.) Any party plaintiff or defendant may enter an appeal if he so desires. (Ga. Code Ann. 6-110.) Accordingly, the Georgia Public Service Commission as defendant in the Superior Court action for injunction would have the right to appeal the decision of said court to the Georgia Supreme Court. OPI~ION 67-41 February 2, 1967 You requested my opinion as to whether or not you may issue a name certificate for a corporation to be known as "The Bankers Investment Corporation". Ga. Code Ann. 22-1~02(a), applicable to corporations in general, provides that "the name of the proposed corporation shall not include the words bank, banks, banker, bankers, banking ... unless chartered pursuant to Title 13, as amended." The foregoing prohibition was enacted into law at the 1965 Session of the General Assembly. Ga. Laws 1965, pp. 602, 603. fherefore, it is my official opinion that you may issue a name certificate for a corporation to be known as "The Bankers Investment Corporation" if such 55 corporation is chartered pursuant to Title 13, as amended, but that you may not do so if it is not chartered pursuant to Title 13. The circumstances described by you may present a hardship to the proposed incorporators, but in view ofthe law as it exists today, this is a matter which addresses itself not to you but to the General Assembly. OPI~ION 67-42 (Unofficial) February 2, 1967 You have asked whether the notice of arraignment required by Ga. Code Ann. 9 27-140 I to be sent to all defendants in criminal cases is to be treated as a summons or subpoena in determining the correct fee to be charged by the Clerk of Court pursuant to Ga. Code Ann. 24-2727. The notice of arraignment is a command to a defendant to appear at a specified court at a specified time to plead guilty or not guilty. Failure to appear would subject such defendant to forfeiture of his bond pursuant to Ga. Code Ann. 27-1402. Thus, the notice of arraignment is the criminal equivalent of a summons which has been defined as: "a writ directed to the sheriff or other proper officer, requiring him to notify the person named that an action has commenced in the court whence the writ issues, and that he is required to appear, on a day named, and answer the complaint in such action." Black's Law Dictionary, 4th Ed. p. 1604. A subpoena, on the other hand, is a writ directed to a witness in a cause to appear and give testimony on behalf of either the plaintiff or the defendant. ld. at p. 1595. Accordingly, I believe that the correct fee to be charged for issuing a notice of arraignment would be the fee provided by Ga. Code Ann. 9 24-2727 for issuing a summons. OPINION 67-43 (Unofficial) February 2, 1967 I have your memorandum requesting that I furnish you with a memorandum as to whether or not money which has been currently 56 appropriated for school lunch room purposes can be transferred back to the school lunch appropriation program. In accordance with your request, I have carefully reviewed all of the agricultural laws, together with applicable constitutional provisions, and submit the following for your information. First, I attempted to work out a method to accomplish such purpose under the provisions of Art. VII, Sec. II, Par. IA of the State Constitution (Ga. Code Ann. 2-5501.1 ), together with the implementing chapter of the Georgia Code Annotated. However, I became stymied by the limitations dealing specifically with agricultural products and their promotion rather than with authorization to transfer appropriations interdepartmentally. Therefore it is my opinion that this section could not be utilized to accomplish your desires. Secondly, I tried to conjure a plan to accomplish your desires by utilization of Ga. Code Ann. Ch. 5-28 (Ga. Laws 1966, p. 734) dealing with State Institutional Farms. The only section I could even remotely connect was Ga. Code Ann. 5-2812, which provides as follows: "5-2812. Disposal of agricultural products.-Agricultural products raised, grown, developed, produced, preserved, or processed on any farm operated by the division may be disposed of in the following manner: "(a) To the several departments, bureaus, boards, commissions and other agencies of the State of Georgia, "(b) To the boards of education of the several school systems of the State of Georgia, "(c) To the governing authorities of the several counties and municipalities of the State of Georgia, and "(d) To agencies ofthe Federal Government. "Notwithstanding the other provisions of this section, the Commissioner of Agriculture is hereby authorized to enter into reciprocal agreements with other States for the exchange of agricultural products. The agricultural products received by the commissioner pursuant to such agreements shall be used only in the public institutions of this State." (Emphasis added.) 57 Even though under this above-quoted section the State Institutional Farms may dispose of agricultural products to any "boards of education of the several school systems of the State of Georgia," once again we find an express limitation as to agricultural products rather than to money dispositions and/ or transfers. Additionally, I have reviewed an official opinion rendered by the Attorney General to the State Superintendent of Schools on December 14, 1966, (a copy of which is enclosed herewith for your information) which is, in my opinion, legally sound and correct. Therefore the only method I can see where such moneys could be utilized in the operation of a school lunch program would be by an amendment to the Constitution specifically authorizing such use. OPINION 67-44 February 3, 1967 You requested an official opm10n as to whether the Vidalia Recreation Board is an instrument of city government or a separate entity. Under authority granted by Ga. Code Ann. Ch. 69-6 (Ga. Laws 1946, p. 152, as amended) any county or municipality is authorized to provide by resolution or ordinance for the establishment of a recreation board to provide and maintain parks and other recreational areas. Pursuant to this act, the Mayor and Council of the City of Vidalia established the Vidalia Recreation Board by ordinance dated July 3, 1957. The relevant provisions of the establishing ordinance, all of which are consistent with the act, provide as follows: (I) members of the board are appointed by the mayor and council; (2) each serves for a term of five years but may be dismissed at the pleasure of the mayor and council; (3) the board must submit its budget to the mayor and council for approval; (4) the board must submit an annual report to the mayor and council and such other reports as may from time to time be requested of it. In Maror and Aldernu.:'n ofSavannah v. Harver, '1:)7 Ga. App. 122, the status of the Park and free Commission of the City of Savannah was before the Court. In holding that the members of the commission were municipal officers rather than a separate entity. the Court gave the following reasons: 58 " .. that the appointment of the Park and Tree Commission be by the mayor and confirmed by the city council . . . that the commission or any member thereof may be removed by the mayor and aldermen . . . . The act also provides that the commission shall submit for approval by the council ... an annual estimate of money needed to operate on, and an annual report. . . . The act . . . does not make the Park and Tree Commission a separate corporate entity. lt does not vest in them the power to sue and be sued, the power to contract, the power to raise money and other powers that usually accompany an independent legal entity .... The amended act merely creates an administrative agency through which the municipality may carry out these functions. The membership of the commission, most of its activities, and its financial resources are all controlled and regulated by the mayor and council." Id. at 124. It should be noted that in the above case, the commission was created by an act of the Legislature, whereas the Vidalia Recreation Board was merely authorized by legislative enactment but created by ordinance. fhe creation of local boards or commissions through the passage of local ordinances is in itself sufficient to create a strong presumption that such agencies are part of the local governmental structure in question. In the present situation, this method of establishment in conjunction with the supervision and control retained by the governing body of the municipality leaves little doubt that the board is an instrumentality of the city. therefore, it is my opinion that the Vidalia Recreation Board is part of the municipal government of that city, not a separate entity. OPI:\;10'-i 67-45 (Unofficial) February 3, 1967 You ask whether or not Ga. Code Ann. 34-1307 and 34l319(e) prohibit a candidate's campaign helper from remaining in a polling place and checking the names of electors who vote, so that transportation to the polling place may be sent to bring in electors \\ ho had not yet voted. 59 Ga. Code Ann. 34-1307(a) provides that no person, with the exception of candidates, shall solicit votes within two hundred and fifty feet of any polling place or the outer edge of any building in which the polling place is located. Whether or not the activity you describe is prohibited by Ga. Code Ann. 34-1307(a) depends upon the meaning of the word "'solicit". The term "solicit" means "'to seek for by entreaty, earnest or respectful request, formal application, ... to entreat or petition for something or for someone to do something; urge". Random House Dictionary of the English Language, 1966 edition. A word, when used in a statute, unless it is a word of art, or a word having special significance in a particular trade, bears its ordinary, common meaning. Ga. Code Ann. 102-102(1). It is my opinion that only the compilation of a list of names for the purpose of determining the identity of electors who have not voted, so that transportation can be furnished to electors who have not yet voted is not itself an activity which would, without more, amount to a solicitation of votes within the meaning of Ga. Code Ann. 34-1307(a). Ga. Code Ann. 34-1319(e) provides that ''All persons, except poll officers, persons in the course of voting, persons lawfully giving assistance to electors, and peace officers, when necessary for the preservation of order, must remain outside the enclosed space during the progress of the voting". The words "enclosed space" refer to the area, set apart by a barrier, within the voting room, as required by Ga. Code Ann. 34-708(a). It is my opinion that the list may not be compiled within the "enclosed space", but it appears that such compilation would be lawful if executed by a person remaining outside of the "enclosed space". OPINION 67-46 (Unofficial) February 3, 1967 You ask whether or not you are liable for ad valorem taxes on your automobile under the following facts: "I operate an automobile. I am perfectly willing to purchase a Georgia license tag and pay the fee for registration in Georgia. However, even though I am a Georgia resident, this 60 automobile is not my property. The title is held by the Jefferson State Bank of Chicago, lllinois. I will not gain title and, therefore, ownership of the car until May, 196 7, assuming I am able to make payments of the loan regularly until such time. I believe the contract is such that I do not have equity in this property until the loan is fully paid." If the owner of property transfers legal title thereto, retention of the equitable interest is such substantial beneficial ownership as will render him liable for the ad valorem taxes on the property. Armour Fertilizer Works v. Durrence, 176 Ga. 519 (1933). It is, therefore, my opinion that under the above facts you are liable for ad valorem taxes on your automobile in Georgia. OPINION 67-47 (Unofficial) February 3, 1967 In your letter, you ask the following questions: I. Does the Georgia Motor Vehicle Certificate of Title Act require a seller of an automobile to furnish the purchaser good title to the automobile in a specific period of time after the transaction is consummated, and 2. If a licensed new or used car dealer fails to provide proper title to an automobile, is there any statute that would provide for forfeiture of the dealer's license. Section 8 of the Motor Vehicle Certificate of Title Act requires any dealer to sign the application for the first certificate of title and promptly mail or deliver the application to the Commissioner. Section 16 of the Act requires the dealer when selling a titled vehicle to promptly execute the assignment and warranty of title and cause the certificate and assignment to be delivered to the transferee. Any person selling a titled vehicle in Georgia is required to furnish title on the vehicle to the transferee. There is no requirement that this be done in a specific period of time. However, if the title is not furnished within a reasonable time, the transferee could void the sale for failure of consideration. In addition, a failure to furnish good title to an automobile may violate Section 31, Subparagraph (b) (3), which Section makes it a misdemeanor to willfully violate any provision of the Act. 61 There is no statute in Georgia which provides for the forfeiture or suspension of a motor vehicle dealer's license for any cause. OPINION 67-48 (Unofficial) February 3, 1967 In your letter you ask if the attached power of attorney form to perfect a lien would be acceptable in Georgia. You also ask if an automobile is titled in Texas and your lien is shown on the certificate of title, whether the lien would be perfected in Georgia when the automobile is brought into this State. I have examined the attached power of attorney form and find that it is sufficient as to form. It should be noted, however, that under the Uniform Commercial Code adopted in Georgia, to perfect a lien or security interest on personal property which was subject to a security interest when brought into Georgia, it is not necessary that the debtor sign the financing statement. Ga. Code Ann. 109A-9-402. Security interests and liens in automobiles are perfected under the "Motor Vehicle Certificate of Title Act". See Ga. Code Ann. 109A-9-103 and 109A-9-302; 68-427a. If a security interest was perfected under the law where the automobile was when the security interest was created, it continues to be perfected in Georgia if the name of the holder of the security interest appears on the certificate of title issued for such automobile. Ga. Code Ann. 68-42la(d)(2)(A). There has been some confusion concerning the question of perfection of liens and security interests when the automobile was brought into Georgia within 30 days from the creation of the outof-state security interest or lien. Ga. Code Ann. 68-42la(d) (1). Some Referees in Bankruptcy have held that if the parties at the time the security interest was created knew the automobile would be kept in this State and it was brought into this State within 30 days thereafter, the Trustee in Bankruptcy would have a prior lien in the absence of a Georgia certificate of title issued for such automobile or a notice of lien or security interest filed with the Revenue Commissioner. The problem here is apparently a confusion of the meaning of the 62 word "valid" as found in Ga. Code Ann. 68-421a(d) (I) and the word "perfection" found in Ga. Code Ann. 68-421a(d) (2). In view of the foregoing, it would not be an excess of caution to file notices of lien or security interest with the Revenue Commissioner on all automobiles brought into Georgia on which you hold a security interest created out of this State. The debtor is not required to sign the notice of lien or security interest filed under the "Motor Vehicle Certificate of Title Act". OPINION 67-49 February 4, 1967 You have requested that I advise you in certain respects in regard to the proposed lease of the Western and Atlantic Railroad which is now before your Committee. The State Properties Control Code (Ga. Code Ann. Ch. 91-lA), among other items, vests in the State Properties Control Commission, the control and management of the Western and Atlantic Railroad and certain of its ancillary properties. The Commission is specifically charged with the responsibility of discharging the administrative details prescribed by the Code preparatory to the lease of this property. However, the final approval or rejection of any lease of such property is specifically reserved to the General Assembly. Ga. Code Ann. 91-109A, after first prescribing the procedure to be followed by the Commission in securing a proposed lease of the property, provides in part as follows: "(d) ... A Resolution containing an exact copy of the proposed lease, or to which an exact copy of the proposed lease is attached, shall be introduced in either the House of Representatives or the Senate, if then in regular session, or, if not in session at such time, at the next regular session. Such Resolution, in order to become effective, shall receive the same number of readings and go through the same procedure as a bill in both the House and the Senate. Such Resolution shall be considered by the Committee of the Whole House and by the Committee of the Whole Senate. "(e) If the aforesaid Resolution shall be adopted during such regular session by a majorit; roll call vote of both the 63 Senate and the House of Representatives, the chairman of the commission shall forthwith execute such lease for and on behalf of the commission and thereupon both parties shall be bound by such lease. Such execution shall include the attachment to the lease of a certificate of the Secretary of State under seal showing that there has been recorded in his office a counterpart of such lease and any minutes of the commission, advertisement, notice, invitation for bids, legislative Resolution, and any other record concerning such lease.'' It is my understanding that the Commission has determined the "highest responsible bidder" to be the Southern Railroad, and that pursuant to the provisions of Ga. Code Ann. 91-1 09A, a Resolution containing an exact copy of the proposed lease of the property under discussion has been introduced in the House of Representatives of this General Assembly (House Resolution No. 25 ). Specifically, you have asked me to advise you "what action, if any, is required of the General Assembly, and how long the General Assembly has to take this action, in connection with the W&A Railroad lease." The provisions of the State Properties Control Code are clear insofar as their provisions provide that no lease of the property shall become binding unless the General Assembly shall approve of the same. The time limitation prescribed by the Code within which this action must be taken is also explicit. The Code provides that this action must be taken by the General Assembly at the next regular session thereof which follows after the Commission's determination of the highest responsible bidder and that party's execution of the proposed lease of the property. Therefore, it is my opinion that at the 1967 regular session of the General Assembly, the General Assembly must approve the proposed lease of the Western and Atlantic Railroad to the Southern Railroad by both houses adopting by the requisite constitutional majority House Resolution No. 25, or else the proposed lease shall have been rejected by the General Assembly; and the proposed lease with the Southern Railroad shall be nugatory. If the General Assembly should fail to act upon House Resolution No. 25 at this session of the General Assembly, it is tantamount to a rejection of the proposed lease, having the same effect as if the General Assembly by affirmative action had disapproved of the proposed lease. 64 I am not unmindful of the provisions of the Constitution found in Art. Ill, Sec. Ill, Par. Ill which permits business pending in either house of the General Assembly at the adjournment of any regular session to be considered at the next regular session of the same General Assembly. However, it is my opinion that the General Assembly in adopting the provisions of the State Properties Control Code clearly intended that any lease of the Western and Atlantic Railroad must be approved or rejected by the General Assembly at the regular session of the General Assembly which follows immediately after all of the preparatory matters provided for in Ga. Code Ann. 91-109A have been concluded. You have also requested that I advise you concerning what latitude the General Assembly has, if any, in modifying any of the terms and conditions of the proposed lease with Southern Railroad. Ga. Code Ann. 91-108A vests in the Commission the exclusive authority to determine the content of all provisions which will be contained within an instrument to be executed by the Commission. Once the Commission has reached agreement with the prospective lessee as to the terms and conditions of the proposed lease and it has been executed by the prospective lessee, the document becomes an irrevocable offer and, in my opinion, is not subject to revision or modification by the General Assembly, but must either be accepted or rejected in the manner hereinbefore set forth. The State Properties Control Code limits the authority of the General Assembly to approve or reject a proposed lease to the exact form in which the lease is submitted to the General Assembly. The Code does not contain provisions which will allow revisions to be made in the lease by the General Assembly and for their resubmission to the prospective lessee for his approval or rejection. If the General Assembly should find certain of the provisions contained within a proposed lease to be, in its opinion, unfavorable, objectionable or inadequate, the General Assembly has no power or authority to make revisions in the proposed contract, but does have the power to reject the lease, and presumably, the Commission, in discharging its responsibility to again supervise the submission of bids for a new proposed lease, will be mindful of the terms and provisions which the General Assembly found objectionable in the prevwus document. 65 OPINION 67-50 (Unofficial) February 6, 1967 You ask whether the Tax Commissioner of Colquitt County is entitled to the "tax Fi. Fa. on delinquent taxes" collected by him. Section 4 of an Act approved February 17, 1956 (Ga. Laws 1956, p. 2403), relating to the compensation of the Tax Commissioner of Colquitt County provides as follows: "The tax commissioner shall be compensated in the amount of $6,600.00 per annum to be in equal monthly installments from the funds of Colquitt County. All fees, commissions, costs or any other perquisites collected by the tax commissioner shall be the property of Colquitt County, and shall be turned over to the fiscal authority of said county with a detailed, itemized statement of the services for which such fees were collected." (Emphasis supplied) In view of the above Act, it is my opinion that the Tax Commissioner of Colquitt County is not entitled to the "tax Fi. Fa. on delinquent taxes" collected from delinquent taxpayers. See Clark v. Kaylor, 219 Ga. 256 (1963). OPINION 67-51 (Unofficial) February 6, 1967 You asked for an opinion as to the procedure, if any, by which a ruling of the Board of Pardons and Paroles in a case may be revoked and whether the Governor may have made available to him the files relating to said ruling for examination. Prior to 1943, there were two systems of parole or probation of force in the State: first, that under which the trial judge could provide in the sentence for the parole of offenders convicted or punished as for misdemeanors; and second, that under which the Prison Commission with the approval of the Governor could order probation to all offenders who might be convicted of any offense save those excepted by statue, after the minimum sentence fixed by law was served. (Formerly Ga. Code Ann. 27-2702 thru 272703, 77-502 thru 77-506). See Johnson v. Walls, 185 Ga. 177 (1937). 66 Under the first system, the statue expressly provided for a due examination by the judge before altering the terms of the original sentence. The parolee was entitled to notice and an opportunity to be heard before imprisonment could be imposed. Roberts v. Lowry, 160 Ga. 494 (1925); Smith v. Veach, 165 Ga. 190 (1927); Plunkett v. Miller, 161 Ga. 466 (1925); State v. Thompson, 175 Ga. 189 (1932). Under the latter system, there was no statutory provision for any prior notice or hearing before the revocation of a parole. Accordingly, the Commission could revoke paroles without notice and hearing. The only restriction on its powers was, as in the case of other quasi-judicial or administrative bodies, that it could not act fradulently, corruptly, or on mere personal caprice. Johnson v. Walls, supra; Bunch v. Clark, 185 Ga. 179 (1937). A defendant whose parole had been revoked by the Prison Commission could not by a petition for habeas corpus attack such revocation, except upon the above grounds. It was stated in Johnson v. Walls, supra: " . . .there is no merit in the attack by this petitioner upon the constitutionality of Code Sect. 77-505, if it be given the interpretation here made, as in violation of the "due process of law" provision of the constitution of Georgia... , and of the fourteenth amendment of the constitution of the United States; ...". A Constitutional Amendment was proposed, however, by Acts 1943, p. 43 and ratified August 3, 1943, to Art. V, Sec. I, Par. XI I of the Constitution of 1877 which took from the Governor all power over pardons and paroles except as to suspension of death sentences and treason cases and provided for a State Board of Pardons and Paroles which was vested with these powers and duties. This Constitutional Provision was adopted as Art. V, Sec. I, Par. XI ofthe 1945 Constitution (Ga. Code Ann., 2-3011). Legislation constituting the State Board of Pardons and Paroles and defining its powers and duties was approved February 5, 1954 (Ga. Laws 1943, p. 185; Ga. Code Ann. 77-501 et seq.). Under this Act, the board has full authority to grant paroles under any rules or regulations which they may set up pursuant to and in accordance with its terms. Walker v. The State, 74 Ga. App. 48, 53 (1946). See specifically Ga. Code Ann. 77-516 and 77-525, as amt:nded. It is generally held that to entitle a prisoner to a release on 67 parole, it is necessary that the formalities prescribed by law be complied with and that a purported parole granted without compliance with legal requirements is illegal and void. 46 C.J. Pardons, 72, P 1207; 67 C.J.S. Pardons, 21, P. 608; Commonwealth v. Sweeney, 281 Pa. 550, 127 A 226; State v. H ierstheimar, 402 Ill. 599, 85 N E 2d I0. On the other hand, it is held that the discretion of a parole board as to releasing a prisoner on parole is absolute and not subject to review by a Court where the board acts according to law and without violation of, or departure from, positive statutory requirements. 67 C.J.S. Pardons 20, P. 606; Goldsmith v. Sanford, C.C.A. Ga. 132 F 2d 126. It should be pointed out that there is a strong presumption in favor of the proper discharge by such public officers of their official duties. Connally v. Atlantic Contracting Co., 120 Ga. 213 (2), 216 (1904); Truluck v. Peeples, I Ga. 3 (1846); Ga. Power Co. v. Fincher, 46 Ga. App. 524 (1933); Johnson v. Walls, supra; Bryant v. Grif}in, 220 Ga. 154 (1964); McCullers v. Williamson, 221 Ga. 358,367. Ga. Code Ann. 77-517 provides that the board, upon placing a person on parole, shall specify in writing the conditions thereof and furnish a certified copy to the parolee. Sections 16 and 17 (Ga. Code Ann. 77-518 and 77-519), as amended, provide the procedure by which a parole may be revoked by the board. Any member may, if he has reason to believe a parolee has violated his parole, issue a warrant for his arrest and, except where the parolee has been convicted of a crime, he is entitled to a hearing before the board and to produce evidence pertinent to the charge of parole violation. Ga. Code Ann., 77-519 provides inter alia: " ... Within a reasonable time thereafter the board shall make findings upon such charge of parole violation or conditional release violation and shall enter an order thereon rescinding said parole or conditional release and returning such person to serve the sentence theretofore imposed upon him, with benefit of computing the time so served on parole or conditional release as a part of such person's sentence, or reinstating such parole or conditional release, or shall enter such other order as it may deem proper." It is my personal and unofficial opinion, therefore, that a parole properly granted may be revoked only by order of the State Board of Pardons and Paroles and only in accordance with the procedure and for the causes referred to herein. See Balcom v. Jackson, 219 68 Ga. 59. This is not to say that in every case there must be a parole violation before a parole may be revoked. For instance, the authority of a parole board to revoke a parole on the ground that the prisoner had not earned it and was mistakenly granted has been upheld. People v. Warden of City Prison, 299 App. Div. 795, 205 N. Y.S. 694; Johnson v. Walls, supra. Accordingly, it is my personal and unofficial opinion that the parole, if properly granted in accordance with law and the rules and regulations of the State Board of Pardons and Paroles, may be revoked only after a hearing before the board on a specific charge of violating the terms and conditions of his parole except in the event he becomes convicted of a crime or enters a plea of guilty to a crime in which case Ga. Code Ann. 77-519 provides for revocation by the board without a hearing. Turning now to the question of whether the Governor may have made available to him the files of the Board of Pardons and Paroles, it is to be noted that all information, records, papers and documents received by the board in the performance of its duties shall be classified as confidential State secrets until declassified by a resolution of the board. (Ga. Laws 1953, Nov. Sess., pp. 210, 211; Ga. Code Ann. 77-533 (a).) Such classification does not apply, however, to the Governor, the General Assembly, and the State Auditor when the information records, papers and documents were, prior to the act authorizing such classification, required to be made available to the above-named persons. (Ga. Laws 1953, Nov. Sess., pp. 210, 211, Ga. Code Ann. 77-533 (b).) The law does not say the records are confidential secrets of the parole board, but confidential State secrets. The Governor, as the chief executive officer of the State and charged with the constitutional duty of taking care that the laws are faithfully executed (Ga. Canst. Art. V, Sec. I, Par. XI, Ga. Code Ann. 230 I I), should have access, in my judgment, to these records. The Governor is charged with certain responsibilities and duties which would of necessity require him to have access to the records of the board. Consequently, it is my personal opinion that it was not the intent of the law that the records of the State Board of Pardons and Paroles be kept secret from the Governor and that files relating to a parole action should be made available to him at his request. OPINION 67-52 (Unofficial) 69 February 6, 1967 You have raised six (6) specific questions concerning the inception and duration of the terms of Ware County Superior Court and the operation of its grand jury system. Your specific inquiries are as follows: "I. When does the October Term of the Superior Court of Ware County terminate by operation of law?" Unless the Judge in his discretion for reasons of public interest specifically acts to continue the October Term of Court to within less than five (5) days from the beginning of the next term or has previously acted to end the term at an earlier date, an otherwise directory provision of Georgia law automatically operates to adjourn the October Term of Ware County Superior Court five (5) days prior to the scheduled commencement of the January Term of Court. (Ga. Laws 1887, p. 58; 1896, p. 47; 1909, p. 97; Ga. Code Ann. 24-30 10; Ga. Laws 1937-1938, Ex. Sess., p. 668; Mathis, et a/. v. Crowley, 146 Ga. 749 (1917); Dover v. Dover, 205 Ga. 241 (1949); Shivers v. Shivers, 206 Ga. 552 (1950); Horkan v. Beasley, II Ga. App. 273 (1912); Luke v. Luke, 32 Ga. App. 738 (1924).) "2. Where there is no order adjourning the October Term of Court, can the Grand Jury that was empaneled and sworn and who served at the October Term of the Superior Court legally continue and serve at the January Term of said court?" Even if the Judge does not specificially adjourn the October Term, it cannot as a matter of law continue in any of its aspects beyond the date on which the January Term of Court is scheduled to begin. (Act 1799, Cobb 457; Ga. Laws 1901, p. 42, Ga. Code Ann. 24-3001; Ga. Laws 1937-1938, Ex. Sess., p. 668.) Therefore although the particular provisions of law applicable to Ware Superior Court do allow the Judge in his discretion to either draw or refrain from drawing a Grand Jury for the January Term, the power to continue the services of the Grand Jury for the October Term is not given. (Ga. Laws 1937-1938, Ex. Sess., pp. 668, 669.) There having been a final adjournment of the October Term its Grand Jury becomes "functus officio" and has no legal power to further perform the duties of a grand jury. (Braxley v. The State, 143 Ga. 658,661 (1915).) 70 The statute here being considered is clearly distinguishable from the comparable provision governing grand jury service in Walton County which was interpreted by the Supreme Court as allowing the use of the same grand jury for two (2) consecutive terms of court. (Ga. Laws 1921, p. 135; Long v. State, 160 Ga. 292 (1925).) In that instance the Judge, clearly prohibited from drawing a grand jury for two (2) of the terms of court, was still given the power to require the attendance of "the grand jury" at both of these terms. Ibid. Hence, the only conclusion to be drawn was that the same grand jury could be used for two (2) consecutive terms. (Long v. State, supra.) On the other hand, the Judge of Ware Superior Court is given the discretionary power to draw a Grand Jury for the January Term if he wishes a Grand Jury to function during this Term of Court. Unlike the Judge of Walton Superior Court he is not required to use the Grand Jury from the previous Term in order to exercise his discretionary powers. (Ga. Laws 1937-1938, Ex. Sess., pp. 668, 669.) His discretion in this regard is not in contradiction to the generally applicable rule that a grand jury be drawn for each term but simply represents one of many legislatively created exceptions to this requirement designed to adjust the grand jury system to a particular superior court. (Ga. Laws 1869, p. 140; 1874, p. 20; Ga. Code Ann. 59-203.) In that regard it is very much like the provision of law which laid the basis for the right of the various superior courts to differ from each other in the number of sessions which they hold. (Act 1799, Cobb 457; Ga. Laws 1901, p. 42; Ga. Code Ann. 24-3001.) Finally it should be noted that since no specific authorization is given to the Judge to use the same grand jury for successive terms of court, a prohibition formerly part of the Georgia Penal Code specifically bars a person in Ware County from serving as grand juror for two (2) consecutive terms of Superior Court. (Ga. Laws 1903, p. 83; 1911, p. 72; Ga. Code Ann. 59-114.) The Supreme Court in applying this prohibition to a statute worded essentially like the provision applicable to Ware County Superior Court held that a particular grand jury could not be used for more than one term of court. (Ga. Laws 1911, p. 81; Tompkins v. State, 138 Ga. 465 (1912).) Therefore in answer to your second question as specifically worded it is my opinion that even if there is no order adjourning the . 71 October Term of Court, the Grand Jury which served at that Term of Court cannot serve at the January Term of Ware County Superior Court. "3. Is the Judge of the Superior Court of Ware County authorized to draw a Grand Jury for the January Term of said court?" Yes. The provision of law cited in answering your second question clearly gives the Judge of Ware Superior Court the power in his discretion to draw a Grand Jury for the January Term of Court. (Ga. Laws 1937-1938, Ex. Sess., pp. 668, 669.) "4. Does the Judge have the legal authority to extend a term of court beyond five days before the beginning of the next term?" The answer to this question is in the affirmative on the basis of the authority cited in my answer to your first question. It should however be noted that the law governing Ware Superior Court serves to preclude the extension of any of its terms of court beyond the date on which the next term of court is to begin. (Ga. Laws 1937-1938, Ex. Sess., p. 668.) "5. Is a Grand Juror eligible to serve in two successive terms of Superior Court in Ware County?" A negative answer is given to this question for the reasons set forth in my answer to your second question. Although a person cannot serve as a Grand Juror during two consecutive terms of Ware County Superior Court, it should be noted that the same provision of law does allow a Traverse Juror to serve as a Grand Juror at the subsequent term of court. (Ga. Laws 1903, p. 83; 1911, p. 72; Ga. Code Ann. 59-114.) 6. "Will you please state in your opinion when each of the four terms of the Superior Court of Ware County begins?" It is provided by statute that the four (4) regular terms of Ware County Superior Court shall convene on the fourth Monday in January, the fourth Monday in April, the fourth Monday in July and the fourth Monday in October in each year. (Ga. Laws 19371938, Ex. Sess., p. 668.) 72 OPINION 67-53 (Unofficial) February 7, 1967 You requested an opinion as to your authority to continue to perform contracts entered into prior to the revocation of your Structural Pest Control license and certification on September 16, 1966. It is my opinion that since your license has been revoked, you are prohibited from performing any type of Structural Pest Control work and that if you do so even pursuant to a contract entered into prior to the revocation of your license, you would be subject to criminal penalty. The Attorney General was not present at your hearing, and the members of his staff who were present do not recall any discussion with you regarding the possibility of your continuing to honor your prior contract should your license by subsequently revoked. OPINION 67-54 (Unofficial) February 8, 1967 You ask the following: 1. Whether the term taxable property as used in Art. VI I, Sec. VII, Par. I of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-6001) relating to the debt limitation of a county refers to the "gross digest of the county minus the personal property exemptions." 2. Whether there is a limitation, based upon a percent of taxable property, as to the amount of revenue anticipation obligations that a county may issue pursuant to Art. VI I, Sec. VII, Par. V of the Georgia Constitution (Ga. Code Ann. 26005). Ga. Code Ann. 2-6001, relating to your first question, provides in part as follows: "The debt hereafter incurred by any county, municipal corporation or political subdivision of this State except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein . . . ." 73 As pointed out in Miles v. State of Georgia, 96 Ga. App. 610, ( 1957), the above constitut.iona1 provision is subject to strict construction. For this reason, it is my opinion that "the assessed value of all the taxable property therein" refers to the net digest of the county or other political subdivision and not to the gross digest minus only the personal property exemptions. Your second question covers Ga. Code Ann. 2-6005, which provides, in part, as follows: "Revenue anticipation obligations may be issued by any county, municipal corporation or other political subdivision of this State, to provide funds for .... Such revenue anticipation obligations shall be payable, as to principal and interest, only from revenue-producing facilities of the issuing political subdivisions, and shall not be deemed debts of; or to create debts against, the issuing political subdivisions within the meaning of this paragraph or any other of this Constitution . ..."(Emphasis added) The above provision shows that revenue anticipation obligations are not debts of the issuing political subdivision and are not subject to the debt limitation clause in Ga. Code Ann. 2-6001. Reed v. City ofSmyrna, 201 Ga. 228, 235 ( 1946). In view of this and the fact that there is no limitation in Ga. Code Ann. 2-6005, it is my opinion that the amount of such obligations to be issued by a county are not restricted to a percent of taxable property therein. OPINION 67-55 February 9, 1967 You requested an official opinion as to whether certificates of deposit issued by Georgia banks to an insurance company domiciled in another state, but licensed in Georgia, are intangible property having a tax situs in this State. You state that these certificates are not funds received directly from Georgia premiums, or funds which are used as working capital for carrying on the Georgia business of this company. This question has apparently arisen in view of Ga. Code Ann. 56-1305 which provides that an insurance company doing business in Georgia may reduce its premium tax from 2-1/4% to 74 1-1 j 4% if one-fourth of its total assets are invested in the classes of property described in that provision including intangible property having a taxable situs in this State. Money belonging to persons residing outside of the State of Georgia (except as provided in Ga. Code Ann. 92-121) is not subject to Georgia's intangible tax. Ga. Code Ann. 92-123 (Ga. Laws 1937-38 Extra Sess. pp. 156, 160, 161, as amended). Ga. Code Ann. 92-121 provides that property acquired in the conduct of, or used incident to, business carried on or property located in this State is subject to the tax. In Suttles v. Owens-Illinois Glass Co., 206 Ga. 849 (1950), Mr. Chief Justice Duckworth writing the opinion in which all the Justices concurred said: "While tangible property is taxable in the State where it is located, and generally intangibles are taxable in the State where the owner resides, yet there is an exception to this general rule regarding intangibles. That exception is that a debt of a citizen of this State owned by a nonresident and held at his domicile outside of this State is taxable in this State if it accrues out of or is an incident to property owned or a business conducted by the non-resident or his agent in this State. Armour Packing Co. v. Savannah, 115 Ga. 140 (41 S.E. 237); Armour Packing Co. v. Augusta, 118 Ga. 552 (45 S.E. 424); Armour Packing Co. v. Clark, 124 Ga. 369 (52 S.E. 145); Columbus Mutual Lije Insurance Co. v. Gullatt, 189 Ga. 747 (8 S. E. 2d, 38); Suttles v. Associated Mortgage Cos., 193 Ga. 78 (17 S.E. 2d, 272); National Mortgage Co. v. Suttles, 194 Ga. 768 (22 S.E. 2d, 386); Davis v. Metropolian Lije Insurance Co., 196 Ga. 304 (26 S.E. 2d, 618); Davis v. Penn Mutual Lije Insurance Co., 198 Ga. 550 (32 S.E. 2d, 180); Northwestern Mutual Lije Insurance Co. v. Sullies, 20 I Ga. 84 (38 S.E. 2d, 786); Davis v. Penn Mutual Lije Insurance Co., 201 Ga. 821 (41 S.E. 2d, 406). These decisions of this court should put at rest any question as to the tax situs of intangible property. The same rule applies in the Federal jurisdiction. Wheeling Steel Corp. v. Fox, 298 U.S. 193 (56 Sup. Ct. 773, 80 L. ed. 1143) . . . . It was held in Wheeling Steel Corp. v. Fox, supra, that to tax intangibles contrary to the tax-situs rule stated above would constitute a denial of due process and would offend the Fourteenth Amendment." 75 In Suttles v. Northwestern Mutual Life Insurance Co., 193 Ga. 495 (1942), and followed in Davis v. Metropolitan Life Insurance Co., supra, it was held that, where a non-resident life insurance company made loans secured by Georgia real estate, without reference to policyholder relationship, and through a channel entirely separate from that through which it issued insurance policies to Georgia residents, doing so merely as part of its general plan of investment, for protection alike to all of its policyholders, and with no other reference to its Georgia insurance business, the loans thus made by the company were not so connected with its Georgia insurance business as to render credits arising therefrom taxable here merely on the theory that they were a part of such business. In view of the foregoing, under the facts stated in your letter, it is my opinion that the intangible property represented by the certificates of time deposits has acquired no taxable situs in this State. OPINION 67-56 (Unofficial) February 9, 1967 You ask whether a security deed securing a note which contains neither the principal amount of the note nor the due date should be recorded. The answer to your question can be found in Georgia Code Ann. 92-165. This statute provides in part that: ". . . It is the intention of the General Assembly of Georgia that this intangible tax herein levied . . . shall be paid to the tax collector or tax commissioner prior to and as a prerequisite to the filing for record of the real estate instrument securing said note with the Clerk of the Court, and that the Clerk of the Court shall not be permitted to file for record such an instrument unless the security instrument discloses on its face the principal amount of the note, the date executed and the due date, and the certificate of the tax collector or tax commissioner or his deputy showing that this tax has been paid upon such note. . . ." From the above Code Section, it is clear that unless a security deed securing a note shows the principal amount of the note and its due date, it can not be lawfully recorded. 76 OPINION 67-57 (Unofficial) February 10, 1967 You asked to be advised whether or not you have authority to transfer certain obsolete and worn-out equipment of the Department of Public Safety to the Board of Commissioners of Hall County and Spalding County. Ga. Code Ann. 40-1902 (Ga. Laws 1937, pp. 503, 505, as amended) provides in part as follows: "The Supervisor of Purchases shall have power and authority and it shall be his duty . . . "E. . . to provide for transfer and/ or exchange to or between all State departments, institutions and agencies or to sell all supplies, materials and equipment which are surplus, obsolete or unused; ..." Section 4 of Article 9 of the Rules and Regulations of the Supervisor of Purchases provides: "Whenever a department certifies in writing to the Supervisor that certain described equipment is "surplus, unused and disposable", he will advise its method of disposal, either by gift or transfer to another department, or by sale. If it is necessary to sell such surplus equipment, due notice to the public shall be given, and written bids received by the Supervisor, or by the department at his request, and the highest and best bid will be accepted by the Supervisor. The item or items of equipment disposed of, as above, may then be taken from the inventory, the file of the transaction being attached to the inventory." There is no provision authorizing the disposal of such equipment in any manner other than as provided above. It is, therefore, my personal and unofficial opinion that you are not authorized to transfer the equipment to a county as a gift. See Op. Att'y Gen. 1954-56, p. 660 and 1960-61, p. 380. OPINION 67-58 (Unofficial) February 13, 1967 You requested an unofficial opinion as to whether certain 77 companies or agencies which charge fees for counseling, interviewing and writing resumes to companies in behalf of applicants are employment agencies and subject to the jurisdiction of your office. Ga. Code Ann., 84-4101 et seq. (Ga. Laws 1959 p. 283) provides for the licensing and regulation of employment agencies by the Commissioner of Labor. "Employment Agent or Employment Agency" as defined in Ga. Code Ann. 84-4101 (f) means " . . . any person who, for a fee, ( 1) procures or offers or attempts to procure employees for persons seeking the service of employees, or employment; or (2) who, for a fee, in seeking to perform any of the foregoing, gives information by any means as to where employees or employment may be obtained." OPINION 67-59 (Unofficial) February 13, 1967 You asked for legal counsel relating to student housing problems. Specifically you have asked: "1. Can the University defend its position in insisting that a student contract with a householder for at least an academic quarter when the law, as we understand it, only requires a renter under a verbal agreement to give 30 days' notice of intent to vacate? We have inherited the policy from days gone by that the University presumes a student to rent for the entire quarter. "2. To what extent are renters and householders bound by a verbal agreement? "3. What constitutes a ground for the breaking of rental agreements? "4. To what extent are officials who render advice either to students or householders protected by the State in the event they are brought into the courts? "5. Does the University have the right to hold up student records on the basis of an unsettled dispute between a student and householder? If so, what is the extent of this right?" Responding to your first and second questions, the government, control and management of the University of Georgia is vested in 78 the Board of Regents. (Ga. Code Ann. 32-113.) Consequently, as a State agency, the Board of Regents may promulgate such rules regulating students' off-campus housing as are reasonably necessary to the government, control and management of the institution and its purpose of providing an education to the students. Thus, if the Board finds it necessary that students living in off-campus facilities remain in such facilities for a specific period of time, it would be in order to promulgate a rule to that effect. Such a rule would, of course, have no effect upon private landlords leasing quarters to the students, but the students would be on notice to negotiate a lease term in accordance with the rule or be subject to reasonable disciplinary action for violation thereof. Whether or not there is a rule regulating the minimum term of students' off-campus housing arrangements, the other terms and conditions of such a lease are of concern only to the parties involved--the landlord and the prospective student lessee. The parties may make an agreement orally or in writing, except that an oral agreement for morethan one year will create a tenancy at will. (Ga. Code Ann. 61-102.) The parties may agree orally or in writing to any manner of termination they desire, which manner shall be binding upon them. However, if no time is specified for the termination of the lease, the law construes it to be a tenancy at will. (Ga. Code Ann. 61-104.) In order to terminate a tenancy at will, sixty days' notice is required from the landlord and thirty days' notice from the tenant is necessary. (Ga. Code Ann. 61-105.) Thus, one may make a valid oral lease agreement for a period of one year or less and be bound by the agreed terms thereof just as in a written contract although he may be somewhat handicapped in presenting evidence as to the terms of the agreement. Since your questions relate to students, I think it appropriate to mention the law governing the contracts of infants. In the eyes of the law, an infant is any person who has not attained the age of twenty-one years. (Ga. Code Ann. 74-104.) Generally, the contract of an infant is voidable. However, the contract of an infant shall be binding on him if (a) he ratifies or affirms the contract by continuing to enjoy the benefits of such contract after reaching majority; or (b) he is over the age of eighteen and married; or (c) the contract is one for necessaries (such as lodging) and the party furnishing same proves that the parent or guardian of the infant had failed to supply the infant sufficient necessaries. (Ga. Code 79 Ann. 20-201.) Accordingly, the lease contract of a student under twenty-one years old may be voided by him unless he falls within one of the above-listed exceptions. Turning now to your third question, a lease agreement may be broken by the breach of the contract by either party to the agreement when both parties can be restored to the condition in which they were before the contract was made. (Ga. Code 20907.) In addition, a latent defect in the premises which defect renders the premises untenantable would constitute a constructive eviction which would allow the tenant to vacate the premises and to refuse to pay rent thereafter. (Magnolia Warehouses ofA!abama, et a!. v. Morton Realty Company, 102 Ga. App. 697 (2) ( 1897).) However, the destruction of a tenement by fire or the loss of possession by any casualty not caused by the landlord, or from the defect in his title, shall not abate the rent contracted to be paid. (Ga. Code Ann 61-113.) In answer to your fourth question, I can say only that the State affords such limited protection to State employees who are sued in their individual capacity that it would be impossible to make any generalization thereon. Replying to your last question, I do not believe the University has the authority to withhold records or property of a student because of a dispute between the student and a third party, without a court order. Accordingly, the answer to your last question must be "no". Finally, it is my understanding that the University maintains a listing of rental facilities open to students. If Regents so desire, I would be happy to draw up a rental agreement form for the use of the students and landlords, which form would resolve many of the questions posed in your letter. Since such a written agreement would be of benefit to all parties, it is presumed that use would be made of such an agreement, although, the parties would, of course, be free not to use it. OPINION 67-60 (Unofficial) February 13, 1967 This will acknowledge receipt of your letter written for the benefit of the Chairman of the Georgia Senate Agriculture 80 Committee, m which you ask my informal opinion on three questions, to wit: "1. Is Foundation Seed, Incorporated the legal entity to receive foundation seed releases from the Georgia experimental stations and in turn sell them to qualified Georgia farmers? "2. If the answer to the first question is affirmative, does Foundation Seed, Incorporated have the legal right to release foundation seed to only one qualified Georgia grower or to only one group of qualified Georgia growers when other qualified Georgia growers are also desirous of these seeds and no bidding procedure has been followed? "3. If the answer to the first question is affirmative, may Foundation Seed, Incorporated sell any foundation seed to any person or group of persons without setting quality standards for those persons who may buy the seed, without advertising the availability of the seed for distribution and without awarding the seed to the highest qualified Georgia bidder?" In answer to question number l, Foundation Seed, Inc. is not the proper legal entity to receive foundation seed releases from the Georgia experimental stations in order that the same could in turn be sold to qualified Georgia farmers. I direct your attention to Ga. Code Ann. Section 5-2705 (Ga. Laws 1959, pp. 83, 85) which specifically states, inter alia, that the Georgia Seed Development Commission is the proper agency to cooperate and contract with the University of Georgia College of Agriculture Experiment Stations, the Department of Agriculture of the State of Georgia, the U. S. Department of Agriculture, and any other agency of the State or Federal Government in making foundation seeds of superior varieties and hybrids available in adequate quantities according to the requirements and needs of farmers of this State. As you know, Ga. Code Ann. 102-102 relates to the construction of statutes. I deem it unnecessary to enumerate the authority for the rules of construction that the intent of the General Assembly in enacting a statute is the cardinal rule of construction and that a substantial compliance with laws, especially on the part of public officials and agencies, shall be required. lt therefore clearly appears that the overall intent and purpose of 81 this statute was to aid in the production and promotion of foundation seed from breeder seed and that the Georgia Seed Development Commission was and is the proper party to contract with the University of Georgia College of Agriculture Experiment Stations in effectuating such purpose. Since the answer to question number I above is in the negative, such would obviate the requirement for answering questions 2 and 3. OPINION 67-61 February 14, 1967 You requested my official opmwn as to whether or not the unearned premium reserve requirements of the Insurance Code may be satisfied by a company issuing three year policies providing for the payment of premiums in equal annual installments by treating such policies as annual policies and by reserving only against each year's premium rather than the total three year premium. A copy of a letter written by the company's counsel which you furnished with your request discloses that the problem involves the company's Homeowners Policies and that Special Condition No. 4, "Deferred Premium Payment" on this type policy reads as follows: "4. Deferred Premium Payment-(applicable only in Georgia, North Carolina and Virginia)-Not applicable if policy is written on a. Continuous Renewal basis: If the Insured elects to pay the premium in equal annual payments as indicated on the first page of this policy, the premium for this policy is hereby made so payable. "If the Insured is in default of any such premium payment and this Company elects to cancel this policy, notice of cancellation shall be in accordance with the provisions of this policy, but in such case any portions of the premiums previously paid shall be earned by this Company." Ga. Code Ann. 56-906 provides in its pertinent part: "( l) With reference to insurance against loss or damage to property ... and with reference to all general casualty insurance and surety insurance, every insurer shall maintain an unearned premium reserve on all policies in force. (Emphasis added). 82 "(2) The Commissioner may require that such reserves shall be equal to the unearned portions of the gross premiums in force after deducting reinsurance in solvent insurers as computed on each respective risk from the policy's date of issue. If the Commissioner does not so require, the portions of the gross premium in force, less reinsurance in solvent insurers to be held as a premium reserve, shall be computed according to the following table: . . . . " (Emphasis added). It is contended by counsel for the company that only one year's premium is all that is included in the "gross premium in force" within the purview of Ga. Code Ann. 56-906(2). It is my opinion that this represents the correct view and proper interpretation of the above provision. The generally accepted and traditional approach to the computation of the unearned premium liability requires the establishment of the premiums in force as of the statement date and application of unearned premium percentages or fractions thereto to obtain unearned premium liability. Premiums paid by the policyholder generate contributions to premium in force. See Insurance Accounting- Fire & Casualty, Second Edition, Chapter X on Unearned Premiums at page 179. This textbook, a project of the Insurance Accounting and Statistical Association and edited by W. Rogers Hammond, D.B.A., C.P.A., Dean of Graduate Studies, School of Business Administration, Georgia State College states at page 176: "Fire and Casualty insurance contracts provide insurance protection for a definite period of time known as the term of the policy. The premium payment may buy protection for the entire policy term. In continuous renewal or installment policies, however, each premium payment buys protection for a period of shorter duration than the policy term. The period for which each premium buys protection is the basis for establishing the unearned premium." (Emphasis added). It is, therefore, my opinion that under the factual situation presented in your letter the company may satisfy the unearned premium reserve requirements of the Insurance Code by reserving only against each year's installment premium which puts the policy in force for one year. Your question is therefore answered in the affirmative. 83 OPINION 67-62 (Unofficial) February 14, 1967 You inquired as to the validity under Georgia law of a holographic will dated July 20, 1942. I have examined the copy of the purported will which you enclosed, and find that it was not validly executed under either the law of Georgia as it existed on July 20, 1942, or the law of Georgia on June 28, 1966, the date on which you state the deceased died. Prior to March 25, 1958, Georgia law required that a valid will be attested and subscribed by three witnesses. Subsequently, and to the present date, Georgia law has required that a valid will be attested and subscribed by two witnesses. (See Ga. Code Ann. 113-301.) There is no exception to this requirement in favor of holographic wills. The copy of the instrument which you have submitted evidences that the instrument was not attested and subscribed by any witnesses. For purposes of reference and identification I incorporate in this letter the full text of the handwritten instrument which purports to be an intended will prepared by the deceased: "State of Georgia County of Chatham I, David Billingham, hying of sound mind and body, do by this my last will and Testament give and bequeath unto Mrs. Florence Keating all my property both real and personal. It is my intention and desire that the said Mrs. Florence Keating be given immediate possession and title to said property without inventory or appraisal. This done and given my hand and seal this the 20th of July, 1942. David Billingham" The courts of Georgia have held that such an instrument is a nullity and is not entitled to probate in the State of Georgia. (See Hooks v. Stamper, 18 Ga. 471 (1855); Gay v. Sanders, 101 Ga. 601, 28 S.E. 1019 (1897); Lane v. Beachamp, 106 Ga. App. 769, 128 S. E. 2d 372 (1962) .) In view of the foregoing, it is my opinion that the document prepared by Mr. Billingham would have no ef- 84 feet in Georgia as a testamentary instrument. However, this is not intended in any way to be an attempt to ascertain the validity of the document in any State other than Georgia. I trust this will be sufficient insofar as your inquiry as to the effect and validity of the instrument in the State of Georgia is concerned. If I may be of further assistance, do not hesitate to call upon me. OPINION 67-63 February 15, 1967 You requested an official opmwn as to whether or not the following proposed insurance policy provision would be given effect under the principle of the decision of the Court of Appeals in Wrightsman v. Hardware Dealers Mutual Fire Insurance Company, 113 Ga. App. 306 (1966): "No payment for medical expenses shall be made under this Part unless the person for whom such payment is made shall agree, in writing, that the amount of such payment shall reduce any claim against any insured herein, arising fro.m any occurrence and bodily injury to such person to which this policy applies, and that, in the event such person recovers any part of such medical expenses from any person other than an insured herein, there shall be reimbursement of such medical expenses paid hereunder, to the extent of such recovery." The decision referred to above held invalid a provision which subrogated the company to all the rights of recovery which the injured person " ... may have against any person or organization...." The provision also provided that the injured person " ... shall execute and deliver instruments and papers . necessary to secure such rights. . . ." The court held that this provision amounted to no more than an agreement that the injured person or persons covered under the provision of the policy providing insurance for medical expenses shall, in the event of any payment thereunder, assign to the insurance company his claim against any third party tort- feasor inflicting the injuries resulting in medical expenses. The court held this provision was void and of no effect under Ga. Code Ann. 85-1805 which prohibits the assignment of a right of action for personal torts. In my opinion, the proposed provision quoted in your letter is 85 different from the subrogation provision held invalid by the Court of Appeals and that it is not invalid on its face under that decision. The question as to whether it should be given effect can only be determined by a court of competent jurisdiction. OPINION 67-64 (Unofficial) February 16, 1967 You ask our opinion of certain recording procedures. The first question is whether transcripts of testimony and other evidence such as maps, charts, and photographs should be recorded in the "book of final records," that book which you call the Writ Record. This question concerns Ga. Code Ann. 24-2715, paragraphs I and 2, which reads as follows: "Additional duties of clerks of superior court; ...-The clerk is also required "I. To record in well-bound books, within six months after the final determination of any civil suit, all the proceedings relating thereto." (Emphasis added). "2. Every clerk of the superior or city courts must record immediately in his book of final records every part of the pleadings in every case; all garnishments, affidavits, bonds, and answers thereto; all attachment affidavits, bonds, and writs of attachment; all claim affidavits and bonds, and all bonds given in any judicial proceeding; and no clerk shall allow any of such papers to be taken from his office before recording them as herein required; and such record shall be a part of the final record of the papers required by law to be made, or all such record, as the case may be." (Emphasis added). The Supreme Court of Georgia, in the case of H.&T.M. White vs. Newton Manufacturing Co., 38 Ga. 587, 593 (1869), held that the duty of the Clerk of the Superior Court to record all proceedings relating to the suit does not embrace the evidence given on the trial of the case. The Court further states: "The proceedings which the Clerk should record, and which 86 make up the record, are, the declaration, process, return of service by the sheriff, and other official entries, the plea, verdict, judgment, and all interlocutory orders passed by the Court during the pendency of the case; and in case of a motion for a new trial after verdict, the order nisi, together with any order passed by the Court, setting it down for a hearing in vacation, or adjourning the hearing from time to time; and in case the new trial is granted, all subsequent orders passed by the Court, including the final judgment." Relying on this case, it is our opinion that you do not have to record the transcripts and the other evidence introduced in the case in the Writ Record. Your second question is-1 n the event that recordings in the Writ Record are made just after the conclusion of cases in this court and contain only the pleadings and the verdict, would the filing of an appeal necessitate the recording of all subsequent papers or only the remittitur? This question is covered by Ga. Code Ann. 24-2715, paragraph 3, which states: "3. The Clerk shall, if any subsequent paper in the cause is recorded, make a reference, at the foot of the record hereby required, to the page where such subsequent record may be found, and shall also state the case in the index to the book of record, and enter the number of the pages on which the same is to be found." Following the clear words and meaning of the Code section, it is our opinion that all subsequent papers such as Notice of Appeal, Enumeration of Errors, etc., as well as the Remittitur, should be recorded in the Writ Record. OPINION 67-65 (Unofficial) February 16, 1967 You ask whether the Court of Ordinary of Brooks County has jurisdiction to try cases involving violations of the safety inspection of motor vehicles under the Uniform Act Regulating Traffic on Highways when the violation occurred within the corporate city limits of Quitman, Georgia. 87 It appears from your letter that the recorder's court of Quitman is also asserting jurisdiction over these cases. Georgia laws confer on the Court of Ordinary the jurisdiction to impose sentences in misdemeanor cases arising under the traffic laws of this State in counties where there is no city or county court of county-wide jurisdiction providing the defendant waives a jury trial. Therefore, it is quite apparent that the Court of Ordinary has jurisdiction to try this type of case. Furthermore, a city recorder's court has jurisdiction only to try violations of municipal ordinances and is prohibited from exercising jurisdiction over cases involving State offenses. Therefore, in answer to your question, the Court of Ordinary of Brooks County has jurisdiction over violations of the Safety Inspection Laws; not the Recorder's Court of Quitman County. OPINION 67-66 February 17, 1967 In the past, this office has rendered a number of unofficial opinions advising as to the legality of individual purchases by the purchasing department of private passenger automobiles for various State departments which are not exempt from the provisions of Ga. Code Ann. 40-200 I which prohibits certain purchases with State funds. The purchases have generally been determined to be legal, in accordance with Op. Att'y Gen. 1954-56 p. 641, when it was shown that the intended use of the vehicle was for a legitimate purpose of the department and that it was not to be used by State officials or employees as a mode of transportation for themselves in performing their official State duties. The intended use of the vehicle has, in the past, been established by having the department head requesting the purchase execute an affidavit. The language of some of the affidavits has not been acceptable and it has been determined that it should contain substantially the following language: ''I, , holding the position of _ _ _ _ _ _ _ _ _, and in the employment of the State of Georgia and the Department of - - - - - - - - - being duly sworn, DO DEPOSE AND SAY that the passenger-carrying motor vehicle requested to be purchased 88 by the State Supervisor of Purchases on Requisition No. _____, dated , 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 Department of _________ but that said vehicle is to be used exclusively for the sole purpose of in carrying on of the lawful activities of said _ _ _ _ _ __ I DO FURTHER DEPOSE AND SAY that I fully understand that if I violate the provisions of Chapter 40-20 of the Code of Georgia, concerning the purchase of passengercarrying automobiles with State funds and use of passengercarrying automobiles by State officers, officials or employees, I shall be guilty of a misdemeanor and shall be removed from office." In accordance with Op. Att'y Gen. 1954-56 p. 641, it is my opinion that you are authorized to purchase private passenger automobiles for a department or agency of the State when you are satisfied as to the intended legal use of such vehicles as set forth herein. The purpose of this opinion is to eliminate the necessity of having this department review and pass on each individual purchase. My staff is available to confer with you, however, should there be any question about any particular purchase. I am aware of the numerous problems which have arisen relating to the efforts of the various State departments to comply with Ga. Code Ann. 40-2001 and possibly the only adequate solution to these problems addresses itself to the General Assembly. OPINION 67-67 (Unofficial) February 20, 1967 You ask for an opinion from the Department of Law concerning points raised by the following questions: "(I) Can Walton County hold a referendum for the people to make a determination as to whether or not to legalize the sale of beer in Walton County? 89 "(2) Can this be done without going through the legislature? "(3) Can the Board of Commissioners of Roads and Revenue of Walton County, Georgia, legalize beer by a vote of the Board only? "(4) In the event a referendum is held, would it be a lawful expenditure of county funds to pay for the expenses of holding such referendum?". The sale of beer is regulated by Ga. Laws 1935, p. 73 (Ga. Code Ann. Ch. 58-7), which makes various provisions concerning malt beverages. The term "beer" and "malt beverages" are, insofar as Ga. Laws 1935, p. 73 is concerned, substantially synonymous. Bilbo v. State, 73 Ga. App. 680 (1946). The governing authority of a county has discretionary powers to grant or refuse to permit authorizing the sale of malt beverages in the county. Ga. Laws 1935, pp. 73,80 (Ga. Code Ann. 58-718). The following cases reaffirm the discretionary powers which are to be exercised by the governing authority of the county in granting or withholding malt beverage permits: Harbin v. Holcomb, 181 Ga. 800 (1936); Hodges v. Kennedy, 184 Ga. 400 (1937); Gaissert v. State, 186 Ga. 599 (1938); Hart v. Head, 186 Ga. 823 (1938); Weathers v. Stith, 217 Ga. 39 (1961); and McKinnon v. Manning, 221 Ga. 532 (1965). It is abundantly clear from the provisions of the act and from the holdings in the cases cited above that the issuance of a permit to sell malt beverages in a county rests solely within the discretion of the governing authority of the county. A referendum held to determine whether or not the governing authority of the county should grant permits for the sale of malt beverages would have no legal affect upon the governing authority. See Op. Att'y Gen. 1954-1956, p. 451. As you know, the purposes for which a county may levy taxes are specified in the Constitution. Constitution of the State of Georgia of 1945, Art. VI I, Sec. IV, Par. I. A county cannot obligate itself to pay a debt unless the debt comes within a classification provided for in the Constitution for which a tax may be levied. Houston County v. Kersh and Wynne, 82 Ga. 252, Brunson v. Caskie, 127 Ga. 501 (1907); and Barksdale v. Hayes, 134 Ga. 348 (1910). It is my opinion that it is the duty of the governing authority of Walton County to make a determination as to whether or not malt 90 beverage permits will be issued in that County. I know of no provision, either constitutional or statutory, authorizi-ng an advisory referendum on this question. There is, additionally, grave doubt that the County would be authorized to expend public funds on a referendum which is purely advisory. OPINION 67-68 (Unofficial) February 20, 1967 You requested an opinion as to the performance of autopsies on babies which were delivered without the aid of a physician and who were either stillborn or died subsequent to their delivery without the presence of an attending physician. You pointed out that this situation existed among a certain church sect who did not believe in doctors or hospitals. Ga. Code Ann. 21-205 provides that Coroners shall require postmortem examinations and/or autopsies when any person shall die unattended by a physician; therefore, if these infants die while unattended by a physician or are stillborn, without the aid of a physician, the Coroner should require a proper postmortem examination and/ or autopsy notwithstanding any unwillingness of the parents of the deceased child to give their permission for such an examination or autopsy. OPINION 67-69 (Unofficial) February 20, 1967 You request our opinion as to the legal obligation for providing continued utility service to the remainder, which now has service, where such service is to be disrupted by the taking of a part of the property for highway purposes. Under Georgia law, the prospective and consequential damages resulting from the taking of property may be taken into consideration, if the same are plain and appreciable. Mere inconvenience is not, in itself, an element of damages to be considered in condemnation cases, but inconvenience such as smoke, noise, dust and the like may be considered if shown by the evidence to adversely affect the value of the Condemnee's remaining 91 property. State Highway Department v. Hollywood Baptist Church of Rome, 112 Ga. App. 857, 860 (1966). The same logic as applied to noise, smoke and dust can be applied to interruption of utility service. If the market value of the property would be adversely affected by the interruption of utility service, the condemning authority would be liable for damages. Ga. Code Ann. 93-307, provides that the Public Service Commission shall have general supervision of all telephone, telegraph, gas, electric light, and power companies within this State. The Commission is authorized to require all public service companies under its supervision to establish and maintain such public service and facilities as may be reasonable and just, either by general rules, or by special orders in particular cases. Under the laws and rules of the Public Service Commission, issued January I, 1963, once a certificate is held by a utility for any area, it is the responsibility of the certificate holder to provide service within that area. When a taking of property by Condemnation interrupts utility service, the property owner has a right to this service, and the utility company is required to furnish the service. This is a right which can not be taken without just compensation being paid. Therefore, it is our opinion that utility service must be maintained, or the property owner compensated, in case the service is interrupted by condemnation. OPINION 67-70 February 20, 1967 You refer to the provisions of Ga. Code Ann. 74-111 respecting the reporting of child abuse cases. In specificity, you cite section (c) of this Code provision, which reads: "any person or persons, partnership, co-partnership, firm, corporation, association, hospital, or other entity participating in the making of said report or causing said report to be made pursuant to the provisions of this section or any other law, or participation in any judicial proceeding or any other proceeding resulting therefrom, shall in so doing be immune from any liability, civil, or criminal, that might otherwise be incurred or imposed, providing such participation pursuant to this section or any other law shall be made in good faith." (Emphasis added), 92 and ask whether this provision would provide for civil and criminal immunity to a county department caseworker who files a petition in a juvenile or criminal court respecting matters within the Act's purview. My reply is in the affirmative. In my opinion, the phrase "participating in any judicial proceeding" clearly extends to the filing of a petition as well as mere testimony in a proceeding initiated by others. The very purpose of the Act is to provide for the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection, and to cause the protective services of the State to be brought to bear on such situations. See Ga. Code Ann. 74-111 (d). To say that the "participation" of a caseworker of a county department of family and children services is to be restricted to "testimony," if and when someone else decides to institute a legal proceeding, would seem to me to frustrate rather than further the Act's purposes. Ga. Code Ann. 74-111 (d) states that the Act's provisions "shall be liberally construed so as to carry out [its] purposes." Hence, I conclude that "participation" in a judicial proceeding includes initiation of the same as well as taking part therein after the action is commenced. OPINION 67-71 (Unofficial) February 20, 1967 You requested information concerning the various Iaws and regulations governing the transportation of pets through this State. In this connection, I call your attention to the provisions of Ga. Code Ann. 88-1205 (Ga. Laws 1964, p. 499, 565) which reads as follows: "88-1205. Importing and selling animals and birds.-ln addition to its other powers in the control of preventable diseases, the Department of Public Health may by rules and regulations and orders provide for the licensing, registration, supervision, and investigation of all firms or persons importing, purchasing, breeding, or selling any brids or animals as pets, or any birds or animals which are customarily kept as pets, and may require all such firms to comply with reporting and record keeping requirements and 93 marking, banding, or otherwise identifying such birds or animals. The Department of Public Health is further empowered to prescribe rules and regulations governing the shipment, transportation, or carriage of such birds or animals and require such other control measures deemed necessary to prevent infectious matter present in birds, arthropods, and animals from being conveyed to persons unless the responsibility of such control is by law delegated to some other agency.'' Even though the above-quoted law is on the statute books of the State, to date there have been no regulations adopted concerning the same and presently there are no restrictions on transportation of pets by private passenger cars when they are to remain in the State for only a short period of time. OPINION 67-72 (Unofficial) February 23, 1967 You wrote concerning imposing an excrse tax on the sale of alcoholic beverages within your county. The General Assembly of Georgia in 1965 enacted an Act which would permit a county to levy an excise tax on the sale of alcoholic beverages at either the wholesale or retail level in a total amount not to exceed the sum of $.80 per wine gallon, in addition to the regular annual license fee, which was limited by said Act to be not more than $5,000 for wholesalers and retailers. Ga. Laws 1965, p. 451. The Revenue Tax Act legalizing the control of alcoholic beverages and liquors makes specific provision as to the wording to be placed on any ballot concerning a referendum on this subject. Ga. Code Ann. 58-1007 provides what words must be printed or written on the ballot concerning such a referendum election. We have been unable to find any authorities for a proposition that would require such excise taxes to be irrevocably dedicated to any particular purpose. Of course, the County Commissioners could spend such revenue funds on any public purpose including school purposes. 94 OPINION 67-73 February 27, 1967 You requested an opinion concerning the jurisdiction of the City of Atlanta over property belonging to the Regents of the University System of Georgia. In particular you inquired as to the affect of ordinances of the City of Atlanta and whether Regents is required to abide by same. ln Ga. Code Ann., 102-109, the following provision is found: The State is not bound by the passage of a law unless named therein, or unless the words of the act should be so plain, clear and unmistakable as to leave no doubt as to the intention of the Legislature. This statute refers to all laws regardless of whether passed by the General Assembly or the legislative body of a municipal corporation. In City of Atlanta v. State of Georgia, 181 Ga. 346 (1935), the Georgia Supreme Court considered the question as to the right of a municipality to prescribe rules and regulations by ordinances and thus affect the State of Georgia. ln that full bench decision, the Supreme Court cited Ga. Code Ann. 102-109 and stated in Headnote No.3 as follows: Where repairs are being made upon a building owned by the State, on State property, it is wholly a matter of State concern and a municipal building ordinance is ultra vires insofar as it affects the State. In City ofAtlanta, supra, the Court cited and quoted at p. 348 from a Wisconsin decision as follows: A case which is very enlightening on this matter is City of Milwaukee v. McGregor, 140 Wis. 35, 121 N. W. 642, 17 Ann. Cas. 1002, where it was held: "Statutes in general terms do not affect the State if they tend in any way to restrict or diminish its rights or interests.... ln case of the construction of a building by a State board for State purposes under State authority, the matter is wholly of State concern, and not under any general State or municipal regulation." Also of interest is the following statement from the City of Atlanta, supra, case: There can be no question that courts have jurisdiction to 95 determine whether a municipal act or undertaking is ultra vires and void, and, if so, to enjoin the municipality in a proper case. At p. 349. In Newton v. City of Atlanta, 189 Ga. 441, 445 (1939), the Georgia Supreme Court stated: "The State's properties and instrumentalities are thus exempt from municipal taxation or regulation, in the absence of express legislative authority." On this point an opinion dated November 12, 1959, by the Attorney General of Georgia is also applicable. The question presented was as to whether the State of Georgia, and more specifically the Board of Regents, was subject to municipal inspection and zoning ordinances in reference to new and remodeled buildings owned by the Regents. After citing the City of Atlanta case, the opinion stated that "the basis of the decision is that a municipality is a creature of the State and possesses only such power as the State may delegate to it." Op. Att'y Gen. 195859, pp. 219-220. Ga. Code Ann., 102-109, was cited and the opinion concluded that " ... the presumption would be that the State in authorizing a municipality to enforce zoning and inspection ordinances did not intend to include State property in such inspections." ld. at 220. It is then suggested that the Board of Regents cooperate with the cities in an effort to insure safety, but that same should be on a voluntary basis as the State agency " . . . could not legally pay an inspection fee imposed by a city." Id. Therefore, in conclusion, it is my opinion that pursuant to Ga. Code Ann. 102-109, as well as the applicable case law and the prior Attorney General's opinion, a city cannot affect property owned by the State of Georgia or her agencies and any ordinance affecting such property would be ultra vires and of no effect as far as the State and her property are concerned. OPINION 67-74 February 27, 1967 This is in reply to a Jetter received from the former Director of the State Game and Fish Commission in which he requested my official opinion as to whether the State Game and Fish Commission can enforce the Georgia laws prohibiting hunting and commercial fishing on Sunday. The legal provisions to which he referred as well as other 96 similarly worded laws have been considered by the Supreme Court of Georgia and the maintenance of Sunday as a day of rest and worship was recognized as their sole purpose. Ga. Laws 1873, p. 39; Ga. Code Ann. 26-6906; Ga. Laws 1907, p. 123; 1961, p. 157; Ga. Code Ann. 26-6908; Cobb, 853; Acts 1865-66, p. 233; Ga. Code Ann. 26-6905; Gunn v. The State, 89 Ga. 341 (1892); McAllister v. State, 220 Ga. 570 (1965); Williams v. The State, 167 Ga. 160 (1928). On the other hand the various laws directing the Game and Fish Commission in its operations are all designed to bring about the protection and improvement of wildlife in Georgia. Ga. Laws 1955, p. 483; Ga. Code Ann. Title 45. It is for this reason that neither of the Sunday laws in question was included in the 1955 consolidation of these statutes relating to Game and Fish. ld. This omission constitutes a clear recent expression of the General Assembly's longstanding view that the provisions of law prohibiting hunting and commercial fishing on Sunday have a purpose entirely apart from the concern of the State Game and Fish Commission and lie outside the purview of its law enforcement powers. Therefore, in answer to his specific inquiry, it is my official opinion that the legal provisions prohibiting hunting and commercial fishing on Sunday cannot be enforced by the State Game and Fish Commission. OPINION 67-75 February 27, 1967 You requested an official opinion as to the proper procedure to be employed by your Department in transferring Unicoi State Park in White County to the North Georgia Mountains Commission. By virute of Ga. Laws 1963, p. 357, the North Georgia Mountains Commission was created as an agency of the State. Therefore, the contemplated transfer should proceed as all others between departments of State government. Since, as a general rule, title to real property which is conveyed to a specific State agency is vested in the State of Georgia (Op. Att'y Gen. 1958-59, p. 287), the control and supervision thereof are in the Governor. Ga. Code Ann. 91-402. The governing board of the department wishing to relinquish 97 control over the property should forward a resolution to the Governor requesting the transfer and stating that the property can no longer be used advantageously by that department. The Governor should also be furnished with a resolution from the proposed department - transferee, stating that it is willing to accept and can advantageously use the property in accordance with a specifically stated purpose. By means of an executive order, the Governor can then, if he so chooses, transfer the property from one department to the other, subject, of course, to any restrictions contained in the original conveyance to the State. It should also be noted that there is an additional method of transferring control of this specific park facility since it is located in White County. Ga. Laws 1964, p. 369 provides that the Governor may execute on behalf of the State a lease to any and all lands owned by the State in White County to the North Georgia Mountains Commission for a period not to exceed fifty (50) years. It is therefore my opinion that either of the alternative methods shown above may be used to transfer the Unicoi State Park to the North Georgia Mountains Commission. OPINION 67-76 February 27, 1967 You requested an official opinion concerning the exemption of disabled veterans from the regulatory fees required by the State Examining Boards. In Ga. Code Ann. 84-2011, as amended, certain classes of persons are exempt from the payment of a license for the privilege of peddling, conducting businesses, or practicing the professions and semi-professions in any town, city, county or municipality of this State provided those persons qualifying for the exemption obtain a certificate of exemption from the State Revenue Commissioner. 98 As I understand your request you wish for this opm1on to encompass each and every one of the various examining boards for which you serve as Joint-Secretary. According to Ga. Code Ann. Title 84, the following examining boards come within your jurisdiction as the Joint-Secretary: Georgia State Board of Accountancy; Georgia State Board for Examination, Qualification and Registration of Architects; Georgia State Board of Barbers; Georgia State Board of Cosmetology; Georgia Board of Chiropractic Examiners; Georgia State Board of Dental Examiners; Georgia State Board of Professional Engineers and Land Surveyors; Georgia State Board of Foresters; Georgia State Board of Funeral Service; Georgia State Board of Landscape Architects; Georgia State Board of Certification of Librarians; Georgia State Board of Medical Examiners; Georgia State Board of Dispensing Opticians; Georgia State Board of Examiners in Optometry; Georgia State Board of Osteopathic Examiners; Georgia State Board of Pharmacy; Georgia State Board of Physical Therapy; Georgia State Board of Podiatry Examiners; Georgia State Board of Examiners of Practical Nurses; Georgia State Board of Examiners of Psychologists; Georgia Real Estate Commission; Georgia State Board of Registered Nurses; Georgia State Board of Examiners for Registered Professional Sanitarians; Structural Pest Control Commission; Georgia State Board of Registration of Used Car Dealers; Georgia State Board of Veterinary Examiners; Georgia State Board of Examiners of Warm Air Heating Contractors. In Snipes v. Flournoy, 178 Ga. 815 (1934), the Georgia Supreme Court held that a veteran holding a certificate of exemption was not exempt from the license fee required by the Georgia Real Estate Commission since that license fee was not an occupational tax but was a regulatory fee and intended to provide resources whereby the Real Estate Commission could carry out the intent and purpose of the Act which established same. Therefore, in order to answer your inquiry it is necessary to consult the statute which provides for the disposition of the fees collected by the Joint-Secretary of the State Examining Boards. Under Ga. Code Ann. 84-101, as amended, a secretary is authorized for the various examining boards to be designated "Joint-Secretary, State Examining Boards" and with the duty of administering the various laws applicable to the several State 99 Examining Boards. The Joint-Secretary is also authorized " . . . to collect all fees required by law in connection with licensing of professions, businesses, and trades, . . . ." Additionally, it is further provided that "the expenses and salary of the Secretary and the expenses and salaries incident to the work of his office shall be paid out of the fees remitted to the State Treasurer on a pro rata basis according to the total amount of fees collected annually by the Joint-Secretary for the several examining boards. Any and all balances on hand at the end of each year shall be maintained in the State Treasury for the use and maintenance of the several examining boards and the office of the Joint-Secretary. No examining boards enumerated in this title or which may be created hereafter shall draw from the State Treasury any funds except those collected by them as prescribed by law and, likewise, the office of the Joint-Secretary shall be so limited on the pro rata basis." Furthermore, in Ga. Code Ann., 84-102, as amended, provision is made for the Secretary of State to " . . .employ such clerks and other employees as are deemed necessary to carry out the provisions of this Chapter and for all services required by each of the State Examining Boards: Provided, that all of such expenses shall be paid pro rata out of the respective board fees, and limited to such fees or appropriations for such purposes." Therefore, the fees collected by you as the Joint-Secretary are intended to defray the costs of implementing the various Acts creating the several State Examining Boards. Under the rationale of Snipes v. Flournoy, supra, the fees required by the various State Examining Boards are regulatory fees and not occupational taxes. Since a veteran is exempt only from occupational taxes and not regulatory feees, a veteran is not exempt from the payment of the fees required by the various State Examining Boards. The Act pursuant to which veterans are exempt from the occupational taxes was rewritten and enacted as Ga. Laws 1953, Nov. Sess. pp. 431, 438, and all previous statutory provisions were expressly repealed. However, in Campbell v. Williams, 215 Ga. 717,718 (1960), the fact that the law had been rewritten was noted but the Court stated " . . . nevertheless the new law still merely applies to business and occupational license taxes, and not regulatory licenses . . . ." Thus, although the statute upon which Snipes v. Flournoy, supra, was decided has been expressly repealed and rewritten, the Court in Campbell v. Williams, supra, recog- 100 nized the rationale of the Snipes case and applied same to the rewritten statutory provisions. In addition to Snipes v. Flournoy, supra, an opinion was rendered in 1933 by the Attorney General to the State Board of Barber Examiners which held that disabled veterans holding certificates of exemptions were not exempt from the registration fees required by the State Board of Barber Examiners. Op. Att'y Gen. 1933, p. 363. In that opinion the Attorney General ruled that the registration fee was regulatory and that veterans were not exempt from the payment of same. An opinion was issued in 1960 by the Attorney General which was directed to the question of whether a veteran's certificate of exemption under Ga. Code Ann. 84-20 II exempted a real estate broker or general insurance agent from the applicable licenses. That opinion held that a certificate of exemption did not exempt a real estate broker or general insurance agent from the payment of applicable licenses since same were in the furtherance of a regulatory statute. Op. Att'y Gen. 1960, p. 229. Therefore, in view of the foregoing it is my opinion that Ga. Code Ann. 84-20 I I, as amended, does not relieve a person holding a veteran's certificate of exemption from the payment of the applicable fees required by the various State Examining Boards and as administered by the Joint-Secretary. The veteran exemption applies only to occupational taxes and not to the regulatory fees as are required by the State Examining Boards. Thus, a veteran with a certificate of exemption must pay the fees required by any of the aforesaid State Examining Boards. OPINION 67-77 (Unofficial) February 27, 1967 You ask whether or not it is necessary for a solicitor-general to resign from that office in order to qualify as a candidate for the office of superior court judge. To be eligible to hold the office of judge of the superior court, a person must have, at the time of his election, attained the age of thirty years, been a citizen of the State of Georgia for three years, and practiced law for seven years. Constitution of the State of Georgia of 1945, Art. VI, Sec. XIII, Par. I. The same provisions concerning the eligibility of a person to hold the office of superior court judge are expressed in Ga. Code Ann. 24-2603. 101 A person is ineligible to hold any civil office when he holds "any office of profit or trust under the Government of the United States (other than that of postmaster or offices of the Reserve Corps of the United States Army, Navy or Marine Corps), or of either of the several States, or of any foreign State." Ga. Code Ann. 89-10 I(4 ). It appears that the prohibition expressed in Ga. Code Ann. 8910 I is concerned with the actual holding of two offices, rather than with an office holder's candidacy for election to another office. Accordingly, it is my opinion that a solicitor-general would not have to resign that office in order to qualify as a candidate for the office of superior court judge. OPINION 67-78 February 28, 1967 You wrote regarding the ability of Wayne County to allocate tax money to a municipal recreation commission for use in the operation of its recreational facilities. Ga. Code Ann. 69-605 provides inter alia, that a county may join with any municipality to "maintain" recreational facilities. "Maintain" is defined by Webster's New Collegiate Dictionary (2nd ed. 1959) as "to bear the expense of; support." Therefore, even though the county took no part in the establishment of the recreation commission in question, I am of the opinion that the above cited statute authorizes the expenditure of county funds as outlined in your letter. OPINION 67-79 (Unofficial) March l, 1967 You enclosed a proposed bill which would create the AthensClarke County Charter Commission. The bill authorizes the Commission to study all matters relating to the governments of the City of Athens and Clarke County and all matters relating to the establishment of a "single county-wide government" with powers and jurisdiction throughout the territorial limits of Clarke County. The bill provides further that: "Said Charter Commission shall be further authorized, if its studies so indicate, to draft a charter creating a single county- 102 wide government, which government may supersede and replace existing governments of the City of Athens and Clarke County...." The draft of proposed Charter may provide for the abolishment of the existing governments of the City of Athens and Clarke County and for the creation of a new single government. You have requested my opinion as to the legality of the method of voting described in the bill. Section lO(a) of the bill provides in part as follows: "All persons desiring to vote in favor of said Charter shall vote for approval, and those persons desiring to vote for rejection of said Charter shall vote against approval. The votes cast on such question by the qualified voters of Clarke County residing within the corporate limits of the City of Athens, and the votes cast on such question by the qualified voters of Clarke County residing outside the corporate limits -of the City of Athens shall be counted separately. l f more than one-half of the votes cast by the qualified voters of Clarke County residing within the corporate limits of the City of Athens are for approval of said Charter, and if more than onehalf of the votes cast by the qualified voters of Clarke County residing outside the corporate limits of the City of Athens are for approval of said Charter, then said Charter shall become effective as provided hereinafter, otherwise it shall be void and of no force and effect." I understand that the possible application of the "one person-one vote" principle to the above-specified method of voting has been suggested, and that it has been suggested that the vote should be taken "county-wide", without consideration, as such, of the votes of the qualified voters of the City of Athens. The expression "one person-one vote" was first used by the U.S. Supreme Court in the case of Gray v. Sanders, 372 U.S. 367, 368 (1963), involving the county-unit system. I am not aware of any court decision considering the applicability of the "one person -one vote" rule to the method of voting specified hereinabove. By this, I do not intend to imply that this voting method is unusual. It is not. It is simply that I am not aware of any court decision on this subject. 103 In the absence of such decision, it is necessary to reason by analogy. Mr. Justice Douglas was the author of the opinion in Gray v. Sanders, supra. In a concurring opinion in a recent decision, Ki!gar!in v. Hill, 386 U.S. 120 (1967), Mr. Justice Douglas expressed reservations concerning multi-member districting. He said: "Under the present regime each voter in the district has one vote for each office to be filled. This allows the majority to defeat the minority on all fronts. It is suggested that in multimember districts each person be able to vote for only one legislator, the theory being that in that way a minority, either political or otherwise, would have a chance to elect at least one representative." Mr. Justice Douglas continued by saying that he was not sure in his own mind how the problem should be resolved. According to the United States Census of 1960, Clarke County had a population of 45,363, of which 31,355 resided in the City of Athens. As heretofore noted, the proposed bill would permit the drafting of a proposed Charter providing for the abolishment of the existing government of Clarke County. If the Charter were to be voted upon "county-wide'', as has been suggested, this would allow, to paraphrase Mr. Justice Douglas, the majority (City of Athens) to defeat the minority (residents of Clarke County outside the City of Athens) on all fronts. As you can see, it could be argued that county-wide voting under the circumstances would itself contravene the "one person-one vote" principle. Under the circumstances, I am inclined to feel that the method of voting specified in the proposed bill provides "equal protection" to the citizens of the City of Athens and to the citizens of Clarke County outside the City of Athens; the government of the City of Athens cannot be abolished without a majority vote of its citizens, and the government of Clarke County cannot be abolished and reconstituted without a majority vote of the citizens of the County (both in the City of Athens and outside the City). As indicated to you when we discussed this matter, the problem is not subject to easy resolution. The principles applicable to this situation have not been fully developed as yet. 104 OPINION 67-80 (Unofficial) March I, 1967 You requested an opinion concerning alcoholic beverage excise tax. Your request, as I understand it, has to do with the county's authority to impose beverage excise taxes on the retail sale of alcoholic beverages within a municipality located in Lowndes County. The General Assembly of Georgia in 1965, in an Act approved March 31, 1965 (Ga. Laws 1965, p. 451), provided that: "The municipalities and counties of this state where sales of alcoholic beverages are legal may, and they are hereby authorized, to levy an excise tax on the sale of alcoholic beverages at either the wholesale or retail level in a total amount not to exceed the sum of $.80 per wine gallon on spiritous liquors, excluding fortified wine, which excise tax may be paid at such times and under such rules and regulations as such county or municipality may provide, . . . and such excise tax shall be in addition to any annual license fee which may be imposed." This Act by the General Assembly was an amendment to the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" and in construing such an enactment, it would be proper to consider it as a part of the whole of the legislation which it amends. The scheme and design of the Act amended provided that municipalities could govern and would govern and license and tax the sale of alcoholic beverages within the municipality, and the county would govern such functions within the county outside the municipality. Construing the Act in this manner, it would be my opinion that the authority contained there to impose an excise tax on the sale of alcoholic beverages would apply only to distilled spirits and would not apply to wine, beer, or ale. This does not mean that a municipality or county may not tax the sale of these beverages, but merely means that they must do so under authority found elsewhere. You also ask whether or not the county could impose such a tax under the provisions of the Home Rule amendment to the State 105 Constitution. The Home Rule provisions provide, however, that the governing authority of a county shall have legislative power in a given area where no provision has been made by general law concerning such an enactment. (Constitution of the State of Georgia, Art. XV; Ga. Code Ann. 2-8402.) OPINION 67-81 (Unofficial) March 2, 1967 You ask the following: "If a County Line splits a farm, should all be returned at the selection of the owner, or should be returned in both Counties, if so should the homestead exemption be split between the Counties." Ga. Code Ann. 92-6206 provides, in part, as follows: "All lands in this State subject to taxation, whether improved or unimproved, shall be returned by the person owning the same, or by his agent or attorney, to the tax receiver of the County where the land lies . . . ." Apparently Ga. Code Ann. 92-6209 and 92-6211 relating to certain business enterprises and to wild lands, respectively, are the only provisions which permit real estate to be returned in a county other than the county where the land lies. In view of the above, it is my opinion that the owner of farm land divided by a county line must return such land for ad valorem taxation in each county where the land lies. Your second question concerns whether or not, under the above circumstances, the homestead exemption can be divided between the counties. In this connection, the Court of Appeals, in Jones v. Johnson, 80 Ga. App. 340 (1949), stated: 'The owner of a farm located in this State who resides in a dwelling house situated on the farm is entitled to a homestead exemption as to the entire tract of land upon which the dwelling house is situated, to a value of$2,000 . . . ." It is my opinion that if the farm land is divided by a county line, the applicant for homestead exemption would be entitled to the exemption in each of the counties in proportion to the value of the 106 property located therein, provided all other requirements are met and the total exemption for both counties does not exceed $2,000 or $4,000 where the applicant is over 65 years old and has less than $3,000 income. OPINION 67-82 (Unofficial) March 6, 1967 You advised that the Georgia Science and Technology Commission is considering Colonel's Island in Brunswick as a possible site for the State's Oceanographic Center and requesting an opinion upon the following questions: I. Could this Island be transferred to anothi.i:r State authority? 2. How would such a transfer be accomplished, if legal? 3. What happens to the bonds issued by the State Ports Authority to purchase this Island and develop it'? In answer to your first two questions, I refer you to the State Ports Authority Act (Ga. Laws 1945, p. 464, as amended) which is codified as Ga. Code Ann. Ch. 98-2. Ga. Code Ann. 98-223(b) empowers the Authority to sell or otherwise dispose ofland and any improvements thereon acquired by the Authority pursuant to law and which the Authority may determine is not required for port or warehouse operations or for the future expansion and improvement of the State system of docks. This section further provides that such property may be sold, leased or otherwise disposed of upon such terms and conditions as may be provided by resolution of the Authority. Such a lease or sale must, however, be first approved in writing by the Governor, the State Auditor and the Attorney General. The Authority therefore has the power, under certain conditions, to transfer the property in question. The Authority to which the property is transferred must, of course, have the power to take title to it under such conditions as it may be transferred. Although I have not seen a copy of the resolution of the Ports Authority authorizing the issuance of revenue bonds or the trust indenture, your letter indicates that the Island property is indentured. Under these circumstances the bond issue would have to be funded before the property could be legally transferred. The 107 Authority probably covenants in the trust indenture that it will not transfer the property unless it simultaneously deposits in the sinking fund monies sufficient to redeem all outstanding bonds on the earliest date upon which they could be redeemed in accordance with their terms plus accrued interest. As I stated, I have not seen the trust indenture; however, the rights and interests of the bondholders cannot be impaired in any event. I believe this answers your third question. OPI:'\110:'\167-83 (Unofficial) March 6, 1967 You have pointed out that the Senate has before it Substitute Resolution to House Resolution 25 rejecting the bid of the Southern Railway Company and resubmitting the question of a lease of the Western and Atlantic Railroad to the State Properties Control Commission. You have posed three questions, as follows: (I) In the event Substitute Resolution to House Resolution 25 is voted upon in the Senate at the present regular session of the General Assembly and fails, and no other action is taken, will the matter of the lease of the Western and Atlantic Railroad automatically return to the State Properties Control Commission for further disposition? (2) If Substitute Resolution to House Resolution 25 fails in the Senate, and no other action is taken, and the matter of the lease of the Western and Atlantic Railroad returns to the State Properties Control Commission, will the State Properties Control Commission have complete latitude in its consideration of the matter, limited only by the provisions of the State Properties Control Code? (3) Would your opinion with respect to the question above be materially different if the failure of the Senate to take any action were due to (a) failure of the Public Utilities and Transportation Committee to act on said Substitute Resolution; (b) unfavorable action by said Committee; or (c) any combination of other possible reasons for failure of Substitute Resolution to House Resolution 25 in the Senate? 108 Enclosed for your consideration is a copy of letter dated February 4, 1967. Although it was written before the adoption of the Substitute Resolution, it deals with the State Properties Control Code and is therefore pertinent to your inquiries. As you will note from the enclosed letter, the General Assembly has or has had before it primarily the question of adopting the Resolution awarding th~ lease of the W&A to the Southern Railroad. All of your questions contain as a premise the possible failure of passage of the Substitute Resolution. Basically, if the lease is not awarded to the Southern for any reason, the matter returns to the jurisdiction of the State Properties Control Commission as the Properties Control Code is now written. Any action taken by that Commission would, of course, be governed by the Code as written at the time of the Commission's action. OPINION 67-84 (Unofficial) March 6, 1967 You ask how a vacancy in the office of Judge of the City Court of Hall County is to be filled. The City Court of Hall County was created by Ga. Laws 189091, vol. I I, p. 939. Section two of the 1891 Act provided that the Judge should be appointed by the Governor and that all vacancies were to be filled by appointment by the Governor for the remainder of the unexpired term. Section two of the 1891 Act was amended by Ga. Laws 1903, p. 133, which makes the following provision: "There shall be a Judge of said City Court who shall be elected by the qualified voters of Hall County who shall, after the first term of office hereinafter provided for, hold his office for the term of four years, and all vacancies in the office of Judge, except as hereinafter provided, shall be filled by appointment by the Governor for the balance of the unexpired term. . . ." The law was further amended in 1912. Section four of Ga. Laws 1912, p. 237, which does not appear to be a specific repeal of section two of the prior law, provides that all vacancies by death, resignation, removal, or other cause shall be filled by a special 109 election to be called by the Ordinary. An identical provision is to be found in Ga. Laws 1916, p. 226. Since there is some conflict between the laws of 1912 and 1916 and the law of 1903, it is probable that the earlier provisions relating to filling vacancies by appointment by the Governor were repealed by implication. Ga. Laws 1963, p. 3229 contains an amendment to section two of the Acts of 1891 and 1903. The language of section two, as stated in the 1963 Act, is identical to that of the 1903 Act, except for the salary provisions. The 1963 Act reiterates that vacancies shall be filled by appointment of the Governor. As you have pointed out, the 1963 Act was a local bill and was advertised for the purpose of fixing the salary of the Judge. Ga. Laws 1963, pp. 3229, 3231. Please also note that the title of the 1963 Act states that it is a bill "To change the compensation of the Judge and Solicitor of said City Court of Hall County; to repeal conflicting laws; and for other purposes." Art. III, Sec. VII, Par. XV of the Constitution of 1945 (Ga. Code Ann. 2-1915), relating to advertisement of local bills does not require more information in the notice of intention to apply for local legislation than would be required in the caption of the bill itself. Panlos v. Stephenson, 213 Georgia 816 ( 1958). Regardless of whether it could be argued that the language of the 1963 Act impliedly repealed section four of the Acts of 1912 and 1916, it must be borne in mind that the title of the 1963 Act refers to changing compensation of the Judge and Solicitor. If it were urged that the 1963 Act changed the manner of filling vacancies, the problem would immediately arise that the bill contains matter different from that expressed in the title. The Constitution prohibits the passage of a bill which contains provisions to which reference has not been made in the title. Constitution of the State of Georgia of 1945, Art. I I I, Sec. VI I, Par. VII I (Ga. Code Ann. 2-1908). In all probability, if the question were presented to the Courts, it would be determined that the manner of filling vacancies is unchanged by the 1963 Act, and that vacancies are to be filled by special election. 110 OPINION 67-85 (Unofficial) March 6, 1967 You ask for our opinion regarding the legality of an expenditure of public school funds to run sewer lines from county public schools to city sewer Jines on nearby city streets and to then rent sewage disposal services from the city. OPINION The expenditure of public school funds by a county board of education to run sewer lines from its schools to city sewer lines on nearby city streets, and to purchase sewage disposal services from the city, would not violate any constitutional or statutory provision of the State of Georgia with which I am familiar. DISCUSSION Art. VII, Sec. VI, Par. I of the Constitution of the State of Georgia (Ga. Code Ann. 2-590 I (a)) expressly provides, in part: 'The State, state institutions, any city, town, municipality or county of this State may contract for any period not exceeding fifty years, with each other or with any public agency, public corporation or authority now or hereafter created for the use by such subdivisions or the residents thereof of any facilities or services of the State, state institutions, any city, town, municipality, county, public agency, public corporation or authority, provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." In Shejjield v. State School Building Authority, 208 Ga. 575, 581 (1952), the Supreme Court of Georgia held that this provision applied to county boards of education, notwithstanding the fact that they are not included by name. It must be noted, of course, that the authority to contract under this provision is not a blank check. This provision does not eliminate or supersede the limitations on a school boards contractual authority fixed by other constitutional provisions. See, e.g., Tip ron v. Speer, 211 Ga. 886 ( 1955). Indeed the final clause of the above-cited portion of the constitutional authorization expressly provides that st,~ch contracts can only deal with activities which the contracting parti~s ar~ authorized by law to undertake. Ill Hence, in view of prohibition of the use of public school funds for non-educational purposes, e.g., Art. VIL Sec. II, Par. I (Ga. Code Ann. 2-5501), Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701) and Ga. Code Ann. 32-942, it must be asked whether the proposed expenditure is an expenditure for "educational purposes." In my opinion, the expenditure of public school funds for such utilities for a school house as water, electricity and sewage disposal is just as much an expenditure for educational purposes as is the expenditure of funds to construct and maintain the school house itself. See Op. Att'y Gen. 1955, p. 244 (water supply); 1956, p. 243 (laying sewer lines from city main to construction site of county school). OPINION 67-86 (Unofficial) March 7, 1967 You have requested that I advise you as to the legal steps by which the City of Swainsboro may establish the lost I9n Ordinance codifying its City Code in order that the Code may be admissible as evidence. Mr. Williams is correct in his assumption that the destruction of the adopting ordinance does presently preclude the admission into evidence of the various provisions of the accompanying 1928 City Code, there being insufficient evidence of the Code's passage by the City Council. This conclusion is clearly required by the provision of law governing the admissibility of city ordinances and all of the other various records of municipal corporations which has been interpreted by the courts as allowing the existence and content of city ordinances to be proved only by the introduction into evidence of either the original ordinance or a certified exemplification of the extant original of the ordinance. Ga. Laws 1890-91, p. I09, Ga. Code Ann. 38-606; Metropolitan Street Railway Company v. Johnson, 90 Ga. 500 (1892); Nashville, Chattanooga and Saint Louis Railway v. Peavler, 134 Ga. 618 ( 191 0); Harrison v. Central of Georgia Railway Company, 44 Ga. App. 167 (1931); City oj Dalton v. Cochran, 80 Ga. App. 252, 256-257 ( 1949); Southern Railway Company, eta/., v. Thompson, 96 Ga. App. 305 (1957). Since the above-cited statute has been held to exclusively govern the admissibility of municipal records, an earlier law allowing the admission of destroyed records in general by means of secondary 112 evidence such as oral testimony cannot have any applicability to a destroyed municipal ordinance. Ga. Laws 1855-56, p. 138; Ga. L. 1858, p. 53; Ga. Code Ann. 38-607; Rutherford v. Crawford, 53 Ga. 138 (1874); Southern Railway Company, et al. v. Thompson, supra; City of Waycross v. Boatright, 104 Ga. App. 685 (1961 ). Therefore prior to the admission of this ordinance into evidence, the steps necessary to the legal reestablishment of the ordinance must be undertaken. There is a specific statute delineating the proceedings by which a destroyed public record such as a municipal ordinance can be judicially established and thereby become admissible as evidence. A petition in Superior Court brought by the Ordinary, the official charged generally with the duty of establishing lost public records, seeking the judicial establishment of the particular record is provided for and records established in this manner are the evidentiary equivalent of the original record prior to its being lost or destroyed. Ga. Laws 1887, pp. 112-113; Ga. Code Ann. 38-614-619; Ga. Laws 1882-83, p. 70; Ga. Code Ann. 24-1804; Ga. Laws 1876, p. 101; Ga. Code Ann. 63-101. In conclusion it is my view that the proper means of establishing for evidentiary purposes the lost ordinance is the procedure outlined above and upon the successful conclusion of this proceeding either the judicially established copy of the ordinance or a certified exemplification of this copy will serve to completely fulfill the burden of proof as to the existence or contents of the destroyed ordinance. OPINION 67-87 (Unofficial) March 7, 1967 You asked this office whether or not the State of Georgia classifies as a confidential privilege conversations between a newsman and his source (Shield Law). You further enclosed a questionnaire dealing with the privilege law for newsmen to expedite answering your inquiry. I have completed the questionnaire and am pleased to call your attention to the various privileges against testifying in the State of Georgia. They are as follows: I. The right to be examined only as to relevant matter. I13 2. Privilege against self-incrimination. 3. Privilege against testifying to any matter which tends to bring infamy or disgrace or public contempt upon a witness or any member of his family. 4. Privilege against the introduction of evidence of admissions or propositions made with the view to compromise. 5. Privilege for communications among jurors during their deli berations. 6. For confidential communications between husband and wife. 7. For confidential communications between attorney and client. 8. For certain communications to ministers, priests and rabbis. 9. For secrets of State (these consisting of information not open to the public concerning military and international affairs; the privilege belongs to the United States and apparently also to the state and foreign governments). 10. A spouse of accuseQ not to testify. II. Privilege aginst disclosing the name of an informer who has given information ofviolations of law to the authorities. 12. Privilege against disclosure by official persons of any state matters of which the policy of the state and the interest of the community require concealment. I3. Statutory privilege for communications to a practicing certified public accountant in anticipation of, or pending, his employment. I4. For confidential communications between a licensed applied psychologist and his or her client. I5. For confidential communications between a psychiatrist and his or her patient. 114 OPINION 67-88 (Unofficial) March 7, 1967 You wrote requesting information on schools and care for mentally ill children in this State, which has been referred to me for reply. I am very much aware that there is a great problem in this State in the area of care for mentally ill children. I have observed from your letter that you are aware of the facilities that exist in this State in regard to the care and treatment of such children. I would, however, like to call your attention to the fact that we do have an excellent State Hospital for mentally defective children who are not insane nor of unsound mind. This is Gracewood State School and Hospital in Augusta, Georgia. You raised a question in your letter as to whether or not in Georgia, if the State or County is unable to help you obtain help for your child and if you cannot afford what private care is available, can the juvenile courts of this State order the State or County to help you bear the cost of caring for the child. It is my opinion that the answer to this would be in the negative. The State maintains Milledgeville State Hospital and Gracewood State School and Hospital to handle the mentally ill and mentally defective children in this State. It is well known that there is dire need for vast improvement in the size and facilities of these institutions. However, the only remedy possible is by legislation which is in the hands of the General Assembly of this State. I can only suggest what each and every citizen of this State who has interest in this problem should do, and that is to exert every effort in support of legislation which is beneficial in solving this problem. OPINION 67-89 March 8, 1967 You requested my opinion as to whether the Regents may use funds available at its vari9us institutions to obtain Federal matching funds for the National Defense Edcuational Assistance Loan Program. As you know, loans made under that program may not be repaid under some circumstances. Accordingly, the Regents historically have been precluded from using State funds for such loans because 115 of the constitutional prohibition against the grant of gratuities. (Ga. Const. Art. VII, Sec. I, Par. II; Ga. Code Ann. 2-5402.) A 1966 Constitutional Amendment, however, provides the General Assembly with authorization to appropriate funds to any State agency for the purpose of being used to obtain Federal funds for educational scholarships, loans and other educational purposes. (Ga. Laws 1966, p. 1078, ratified Nov. 8, 1966.) In view of the fact that the above-described Constitutional Amendment was adopted in 1966 and authorizes the General Assembly to appropriate such funds, I believe the Regents may not expend for such purpose State funds unless such State funds have been or are appropriated for that purpose by the General Assembly. OPINION 67-90 (Unofficial) March 10, 1967 You have requested my opinion as to the authority of a city to lease downtown property for the purpose of making off-street parking facilities assuming the city has charter power to do so. There are several problems that I think might be involved in such a project, namely: (I) Ga. Code Ann. 69-202 which provides that one council may not by an ordinance bind itself or its successors so as to prevent free legislation in matters of municipal government. It may not by contract do what it cannot do by an ordinance. Screws v. City of Atlanta, 189 Ga. 839 (1940). (2) Art. VII, Sec. VII, Par. I of the Georgia Constitution (Ga. Code Ann. 2-600 I) which prohibits municipal corporations from incurring a debt. (3) The prohibition of a city using tax funds to engage in a business of a private nature. Beazley v. DeKalb County, 210 Ga. 41 (1953). With reference to the first problem, it has been held that a city may bind itself by any contract authorized by its Charter. Williams v. West Point, 68 Ga. 816 (1882). Also, the business affairs of a municipality are committed to the corporate authorities, and the courts will not interfere except in a clear case of mismanagement or fraud. Lawson v. Moultrie, 194 Ga. 699 (1942); Barr v. City Council ofAugusta, 206 Ga. 753 (1950). These cases hold that the 116 restnctwn applies only to governmental functions and not to proprietary functions. See also Southern Airways Co. v. DeKalb County, 102 Ga. App. 850 (1960), affirmed 216 Ga. 358 (1960). Although, it has been held that the operation of parking meters on the streets of a municipality is a governmental function (Stubbs v. City of Macon, 78 Ga. App. 237 (1948) ), I suppose it could be argued that an off-street parking facility is a proprietary function since it is a revenue producing facility and the fact that it also tends to regulate traffic is merely incidental to its primary function of producing revenue. Turning to the second problem, the courts have held that counties and municipalities may incur liability for legitimate expense without creating a debt in violation of the Constitution, provided there be at the time of creating the liability, a sufficient sum in the treasury which may be lawfully used to pay the liability incurred, or if a sufficient amount to discharge the liability can be used by taxation during the current year. Taylor v. Lovett, 184 Ga. 295 (1937); Rawls v. City of Jonesboro, 212 Ga. 734 (1956). If the revenue received from the project itself will make it self-sttstaining, there may not be an actual debt incurred at all. See Macon Ambulance Service v. Snow Properties, 218 Ga. 262, 270 (1962). If the lease agreement provides for an annual rental of a stated sum and there is incorporated in it a provision giving the city the right to cancel upon giving notice, it seems to me that the first two problems would be eliminated. Alternatively, the lease could be executed for a period of one year with an option to renew annually for a stated number of years. The third problem involving the use of public funds to engage in a private business does not exist if the project involves a public purpose. In my opinion, it does, although, it is the essential character of the direct object of the expenditure which must determine its validity and not the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefitted by the facility. It can be argued that the primary objective is the regulation of traffic and the function is governmental in nature based upon Stubbs v. City of Macon, supra. As pointed out in Beazley v. DeKalb County, supra some jurisdictions in more recent times indicate a tendency to narrow the scope of the term "private business" and to broaden the scope of 117 activities involving a "public purpose" in which a State or its political subdivisions may lawfully engage. The court said, however: "it seems to us that governmental control and supervision of and participation in free enterprise under strained or liberal construction and application of social and economic ideology has gone far enough, if not too far, and should not be further extended." I feel, however, that off-street parking facilities is merely an extension of on-street parking necessary to the proper regulation of traffic and is affected with a public interest. The 1962 Act (Ga. Laws 1962, pp. 140-143; Ga. Code Ann., 69313) specifically empowered incorporated municipalities to regulate and control the use of their streets and public ways and to this end to acquire and place parking meters on or immediately adjacent to their streets for the purpose of authorizing timed parking in designated spaces upon the payment of a charge for such privilege. OPINION 67-91 March 13; 1967 You requested an official opinion as to whether a beneficiary of a deceased member of the Teachers' Retirement System is entitled to elect the form by which she is to receive payment where the member has on file only a 2-A application form. This form, which was filed in 1946, designates the member's beneficiary and provides only for a refund of the member's contribution in the event of his death before retirement on pension. At the time the 2-A application was filed, the Retirement System Act provided, in the event of the death of a member in service, only that the beneficiary or estate was entitled to receive the amount of accumulated contributions with interest. There was no alternative method of payment. This provision of the law is codified as Ga. Code Ann. 32-2905(7). (For convenience, all reference to the Act will be to Georgia Code Annotated). By an Act approved March 24, 1965 (Ga. Laws 1965, pp. 267, 269,270), a provision was enacted and codified as Ga. Code Ann. 32-2905(5) providing that upon the death of any member in ser- 118 vice leaving a named beneficiary, the beneficiary, depending upon the beneficiary designation form on file with the System, shall be entitled to either, (l) a cash refund of contributions with interest; or, (2) a monthly benefit computed in accordance with Ga. Code Ann. 32-2905(3) (C); or, (3) a choice of electing either (1) or (2). As stated above, the only beneficiary designation form on file in this case is the 2-A application form filed when the member joined the System which provided only for a refund of contributions, the only method of payment the law provided for at that time. It is my understanding, however, that subsequently, the Board of Trustees adopted a revised application form 2-A under which an applicant designates his beneficiary. This revised form provides, in the event of the death of the member in service, for payment to the beneficiary of accumulated contributions "andjor other benefits that may be provided under the Act." I further understand that a form 2-C was adopted which authorizes a choice of a monthly benefit or a lump sum settlement and that a form 2-E has been adopted for use in electing a monthly benefit. Thus, the question to be determined is whether the beneficiary should be allowed to elect the method of payment where the member has not done so or where the member has failed to file any form electing a method of payment as authorized in Ga. Code Ann. 32-2905(5). It should be noted that had the revised application form 2-A been in use at the time the member joined containing the words "and/ or other benefits that may be provided under the Act," it would have authorized the beneficiary, in my opinion, to make the election of payment without any question. In this connection, see an opinion dated July 23, 1963, rendered to you by the former Attorney General. It is my opinion that where a member has failed to file a beneficiary designation form electing a method of payment authorized by Ga. Code Ann. 32-2905(5) subsequent to the enactment of this Section that the beneficiary previously designated by the member and qualified to receive the benefits should be accorded the right to choose the form of payment. I do not believe it was the intent of the General Assembly to force a beneficiary to accept a return of contributions where the only beneficiary designation form on file is a part of an original out-dated 119 application form. Particularly is this true where the members were not notified of the adoption and availability of the forms to be filed for this purpose. It is my opinion that the Legislature intended that a choice be made subsequent to the enactment of the provision authorizing the choice. Where it is not made by the member, there is no reason, in my opinion, why the beneficiary should not be allowed to do so. This is not to say that it is necessary in every case for a member to file a new form designating a method of payment. Perhaps the failure to redesignate amounts to a choice. However, suffice it to say that where the only form on file was filed during the time when the law provided only one method of payment, a beneficiary should not be deprived of an alternative method of payment clearly provided for under the present law. OPINION 67-92 (Unofficial) March 13, 1967 You wrote concerning the State law pertaining to the distance that a business licensed to sell malt beverages must be from a church under State law. Prior to the Malt Beverage Act of 1937, Georgia did have a law which prohibited the sale of alcoholic beverages within one hundred yards of any church. The Malt Beverage Act amended this provision and made specific provisions with respect thereto. The Malt Beverage specific provision was held to be unconstitutional in the case of McCaffrey v. The State, 183 Ga. 827 (1937). The General Assembly of Georgia in 1945 adopted an Act which has been codified as Ga. Code Ann. 58-724.1 to prohibit the sale of malt beverages within one hundred yards of any school. However, this provision does not apply to places of religious worship and, as of this time, Georgia has no prohibition on this subject. See Op. Att'y Gen. 1957, page 173. OPINION '67-93 (Unofficial) March 13, 1967 Enclosed is copy of letter dated February 9, 1967, from Daniel W. Sawyer. You will note that Mr. Sawyer has attached one copy of the letter to his Georgia Income Tax Return instead of his check in payment of his taxes. 120 He indicates that he would pay his taxes, except that he apparently is not considered a resident for purposes of voting, in that his name is removed from the voting list in Taylor County and he does not receive requested absentee ballots. Although the procedure (declining to pay taxes) utilized by Mr. Sawyer is not the proper one, his point appears to be well taken. Your attention is directed to Ga. Code Ann. 34-632, setting forth the rules for determining residence. You will note that although a person may be absent from his home county, if he intends to return there, he is nevertheless a resident of the county and entitled to vote there. On the basis of the facts available to us, it would appear that Mr. Sawyer is entitled to remain as a registered voter and to receive an absentee ballot. If there are other facts not available to us, we would appreciate hearing from you concerning them. Apparently, if Mr. Sawyer received from you assurances of the protection of his right to vote, he would voluntarily pay his State income taxes. This would appear to be preferable to a suit against him for collection of those taxes. OPINION 67-94 March 14, 1967 You refer to our opinion of January 16, 1967, to the effect that the area vocational schools maintained by the State Board of Education are "schools" and a part of the public school system rather than college level institutions. You now ask whether during the period July 1, 1958, to December 31, 1964, these schools "qualified under the statutes of the State as being of high school grade or under." The question is not easy to answer. Inasmuch as a vocational school provides a particular type of education (i.e., vocational education) both to individuals who have and to individuals who have not completed high school, an attempt to speak of these specialized schools as being equivalent to, above or below any particular grade might be misleading. Nor is there any State statute with which I am familiar which could be used as a guide in determining whether such a vocational school could be "qualified" as being of high school grade or under. The closest I can come to 121 answering your supplementary inquiry is to repeat that which I pointed out in the opinion of January 16, 1967, to wit: that area vocational schools are operated by the State Board of Education as an integral part of the public school system and are not operated as college level institutions by the Board of Regents. It might be said that since vocational schools are not college level, mathematically speaking, they must be of high school grade or under. This opinion would be applicable to the period July I, 1958, to December 31, 1964. OPINION 67-95 March 14, 1967 You requested an official opinion concerning the legal status in Georgia of a foreign corporation which was domesticated in Georgia and subsequently dissolved in its State of incorporation. According to Ga. Code Ann. 22-1601, as amended, foreign corporations may become domesticated in Georgia whereupon " . . . such corporations and the stockholders thereof shall have the same powers, privileges, and immunities as similar corporations created under the law of this State and the stockholders thereof have, subject to the same obligations, duties, liabilities and disabilities as if originally created under the laws of this State, . . ." One limitation applicable to Georgia corporations in reference to dissolution is found in Ga. Code Ann. 22-1874, wherein it is provided that: All corporations, whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued for the term of three years and until final disposition of all suits begun within that time from such expiration or dissolution [as] bodies corporate for the purpose of prosecuting and defending suits by or against them and enabling them to gradually settle and close their business, to dissolve of and convey their property and to divide their assets, but not for the purpose of continuing the business for which the said corporation shall have been established. In Trust Company of Georgia, Executor v. the Mortgage-Bond Company of New York, 203 Ga. 461 (1948), the Georgia Supreme Court held that the above section did not apply by its terms to 122 foreign corporations and that the section could not be apphed to a dissolved foreign corporation which had never done business in the State of Georgia. However, in Headnote l (b) the Court pointed out that "whether the provisions of Section 36 [now Ga. Code Ann. 22-1874], as quoted could properly be applied so as to authorize suits either by or against a dissolved foreign corporation which had done business in this State, is a question that is not presented by the instant record." In the body of its opinion, the Court stated that there "are several decisions of this Court, holding that where a foreign corporation does come into this State and engages in business here, it becomes a virtual inhabitant or resident of the State of Georgia, and is therefore subject to our laws to the same extent as domestic corporations. See, in this connection, City Fire Insurance Co. v. Carrugi, 41 Ga. 660; Williams v. East Tenn., Va. & Ga. Ry. Co., 90 Ga. 519, supra; Hirsch v. Shepherd Lumber Co., 194 Ga. 113 (20 S.E. 2d, 575)." Therefore, it is my opinion that a foreign corporation, which domesticates in the State of Georgia and subsequently dissolves in its State of incorporation, continues with the same legal status in Georgia as does a Georgia corporation, for the purposes set forth in Ga. Code Ann. 22-1874. OPINION 67-96 (Unofficial) March 14, 1967 Your recent inquiry to the Attorney General requesting information concerning the State laws affecting governmental or public records has been referred to my desk for reply. I am returning the completed questionnaire enclosed in your letter and additionally would offer the following comments for your information. Under the provisions of Ga. Code Ann. Ch. 40-27 entitled "Inspection of Public Records," it is provided, inter alia, that all state, county and municipal records, except those which by order of a court of this State or by law 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. I am enclosing a copy of this chapter of the Georgia Code Annotated for your use. 123 I am also pleased to call your attention to several other provisions of Georgia laws which may have a bearing on your study. Ga. Code Ann. 88-306(b) provides that the Department of Public Health is authorized by regulation to classify as confidential and privileged all documents, reports and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions where such matters relate to secret processes, formulas and methods, or where such matters were obtained or furnished on a confidential basis. All such matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure, or that such production and disclosure may be necessary in the interest ofjustice. Further, Ga. Code Ann. 88-518 provides, inter alia, that records, documents and information in the possession of a psychiatric hospital concerning any individual prior to the time he is admitted to the hospital and during the period of his care and treatment shall not be disclosed except to a court with contempt powers on its order, or in response to a subpoena duces tecum, unless a written request therefor is made to the superintendent of the hospital and the superintendent finds that adequate reason has been shown for the disclosure of such records, documents or information. Additionally, Ga. Code Ann. 88-1723 provides that 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 e~cept as authorized by regulation, or when so ordered by a superior court. There is an exception to this rule however, in that the provisions of the Act do not apply to records of marriages, divorces and annulments of marriages filed in the office of Ordinary or the superior court as the case may be. I also direct your attention to the provisions of Ga. Code Ann. Ch. 17-5, entitled "The Georgia Water Quality Control Act." Under these provisions of Ga. Code Ann. 17-5 18 it is provided that information directly affecting any person obtained by duly authorized agents of the Water Quality Control Board from studies, surveys, investigations and reports, or from other sources 124 as provided in this chapter, shall not be admissible in evidence in any actions at law or equity involving private rights of riparian owners other than the State. OPINION 67-97 (Unofficial) March 14, 1967 This is in reponse to your letter wherein you inquired as to the disposition that should be made of approximately $3,800.00 which was paid to a state revenue agent as a bribe by three persons who subsequently plead guilty to the offense of bribery. It is my understanding that these persons are now seeking to have the money returned. You state that it is your feeling that the money is contraband but are unable to find any law to support your position. I have researched the problem and am unable to find any Georgia law to support your conclusion. The only authority is found in II C.J.S. Bribery 20 which states in part: "It has been held that where money, which has been paid to a prosecutor to induce him not to prosecute or testify as a witness, has come into the possession of a district attorney, such money may be forfeited to the county and cannot be recovered by the bribe-giver." Under the above proposition, the money would be turned over to the county treasurer. As a matter of information, I have discussed this problem with a member of our Revenue Division and he informs me that in a situation similar to this, the money has been turned over to the State Treasurer; however, he does not know of any law to support this practice. OPINION 67-98 (Unofficial) March 15, 1967 This is in reply to your letter wherein you inquired whether you, as Clerk of the Superior Court, could charge a fee for affixing the seal of your Court to Revenue Bonds for the County Industrial Development Authority. 125 In Ga. Code Ann. 87-820, as amended, provision is made whereby bonds issued under the "Revenue Bond Law" must have " ... stamped or written thereon, by the proper officers of such municipality issuing the same, or their agents or servants, the words: 'validated and confirmed by judgment of the Superior Court,' specifying also the date when such judgment was rendered, and the court in which it was rendered, which shall be signed by the clerk of the superior court in which the judgment was rendered." Additionally, the aforesaid section provides for a sliding fee scale which the clerk of the superior court is to receive " . . . for his services rendered under this section." That section requires that the bonds bear the clerk's signature, not his seal. According to the information contained in your letter inquiring about this matter, the Monroe County Industrial Development Authority requires the seal of the superior court to be affixed to the bonds. By Ga. Code Ann. 24-2727 as amended, the clerk of a superior court is entitled to charge $.75 for the affixing of each certificate and seal. By an opinion of the Attorney General of Georgia, this latter section was interpreted to authorize the clerk of a superior court to charge only $.75 for the affixing of each combined certificate and seal rather than $.75 for each certificate and each seal. Op. Att'y Gen. 1960-61, pp. 33, 35. A copy of this opinion is enclosed for your information. In that opinion the Attorney General considered only general obligation bonds and expressly excluded bonds issued under Code Chapters 32-14A and 87-8 " ... which chapters provide therein for payment of court clerk fees in certain specified amounts." Id. at 34. In my unofficial opinion the above quoted provision, Ga. Code Ann. 87-820, refers only to the charge by the clerk for that duty which is required of him by that section and not to the additional service requested by the authority. That code section does not require the affixing of a seal, and thus, the charges allowed by it do not include the affixing a seal to said bonds. However, since the Monroe County Industrial Development Authority requires the affixing of a seal, it is therefore, my unofficial opinion, that pursuant to Ga. Code Ann. 24-2727, you may charge, in addition to the charges allowed by Ga. Code Ann. 87-820, $.75 for each certificate and seal affixed. 126 OPINION 67-99 (Unofficial) March 15, 1967 You wrote concerning the ad valorem taxation of motor vehicles owned by public utilities and railroads. You ask for our opinion concerning the proper method of returning motor vehicles for taxation and whether or not this procedure shall be that provided for in the Act approved March 16, 1966 (Ga. Code Ann. Ch. 9215), or under the provisions of Ga. Code Ann. Ch. 92-27. Prior to the amendment of our constitution on November 3, 1964, there were but two classes of taxable property, tangible property and intangible property. The constitutional amendment of 1964 provided that the General Assembly would be authorized to enact legislation to tax motor vehicles as a separate class from other classes of tangible property for ad valorem property tax purposes. The General Assembly in 1966, pursuant to that constitutional authority, enacted Ga. Code Ann. Ch. 92-15 (Ga. Laws 1966, p. 517). Section I of the 1966 Act provides that the procedures proscribed for returning motor vehicles for taxation was to be exclusive, and Section VI provided that motor vehicles owned by residents of the State shall be returned in the County of the owner's domicile, unless such vehicle is primarily used in connection with some established business enterprise located in a different County, in which case it shall be returned in the County where the business is located. Motor vehicles owned by non-residents are to be returned in the County where situated. Based on these authorities, it is my opinion that motor vehicles owned by railroad companies and other utilities must be returned in accordance with the provisions of the 1966 Act and nqt under the provisions of Ga. Code Ann. Ch. 92-27. You stated in your letter that certain of the motor vehicles owned by your railroad client were exempt from taxation because of certain charter provisions. It is the duty and responsibility of the several tax collectors and tax commissioners to assess and collect ad valorem taxes on motor vehicles and a part of that duty is the determination of whether or not any taxes are due. The Act would not, in my opinion, change the tax exempt status, if any exist, but does place the responsibility of determining that question with these local authorities. OPINION 67-100 (Unofficial) 127 March 15, 1967 Your letter enclosing copies of letters with reference to the eligibility of Dr. Thomas W. Jackson to receive military service credit under the provision of the act governing the Teachers' Retirement System has been referred to me. The provision authorizing credit for military service is codified as Ga. Code Ann. 32-2904 (6) and provides: I (a) Any person who was on active duty in the armed forces of the United States during World War I, World War I I, the Korean War, or any period of National emergency, may receive military service credit for such period of time up to a maximum of five years under the following conditions: (i) Prior service credit shall be awarded at no cost to the member for any period of military services prior to January I, 1945. (ii) Membership service credit shall be awarded for any period of active military service performed after January I, 1945, provided said person shall pay the regular employee contribution of five per cent on the compensation last paid to him as a teacher before entering military service or five per cent on the compensation first paid to him as a teacher after returning from military service, whichever the case may be, plus three and one-half per cent interest on said employee contributions, compounded annually to date of payment, for any period of active military service between January I, 1945, and July I, 1961, and at the rate of six per cent on the compensation last paid to him as a teacher before entering military service or six per cent on the compensation first paid to him as a teacher after returning from military service, whichever the case may be, plus three and one-half per cent interest on said employee contributions, compounded annually to date of payment, for any period of active service subsequent to July I, 1961. (b) Any person who shall leave the teaching profession to enter military service may return to the teaching profession at any time within five years after being released from military 128 service and shall receive credit for such active military service in accordance with the provisions of (i) or (ii) or (i) and (ii) in paragraph (a) above. (c) Any person who shall interrupt college training to enter military service may enter the teaching profession at any time within five years after being released from military service and shall receive credit for such active military service in accordance with the provisions of (i) or (ii) or (i) and (ii) in paragraph (a) above. (d) Any person who, after completion of college training enters military service may enter the teaching profession at any time within five years after being released from military service and shall receive credit for such active military service in accordance with the provisions of (i) or (ii) or (i) and (ii) in paragraph (a) above. Without attempting to pass upon the correctness or incorrectness of Dr. Jackson's computations, it is my opinion that he is entitled to claim a credit for a maximum of five years of military service under Ga. Code Ann. 32-2904(6) (a) provided such service was rendered as specified therein and payment is made as required for service rendered after January l, 1945. OPINION 67-101 (Unofficial) March 16, 1967 You requested an opinion as to whether an applicant could sit for the examination to qualify as a certified public accountant prior to such applicant becoming a citizen of the United States but not have the issuance of a certificate considered until such time as the applicant becomes a naturalized citizen. ln Ga. Code Ann. 84-207, as amended, the following is found as part of the qualifications necessary to apply for certification as a certified public acc':>untant: (a) Applicants for certificates as certified public accountants must be citizens of the United States and residents of this State, over the age of 21 years, and of good moral character. The above provision is, in my official opinion, clear and 129 unambiguous to the effect that an applicant for certification as a certified public accountant must be, at the time of his making application, a citizen of the United States. The statutory provision, supra, states that " . . . applicants for certificates . . . must be citizens of the United States . . . ." Therefore, it is at the time of the making of an application that one must be a citizen of the United States and not just subsequently at the time the Board considers the issuance of a certificate. This conclusion is confirmed by Ga. Code Ann. 84-208, which provides that "The Board shall conduct examinations of all applicants for certification as certified public accountants ..." so that a person must be a qualified applicant as to citizenship pursuant to Ga. Code Ann. 84-207 prior to his taking the examination. Therefore, in view of the unambiguous language of Ga. Code Ann. 84-207, as amended, it is my official opinion that an applicant for certification as a certified public accountant must be a citizen of the United States at the time he makes his application and that the Board may not allow a person to take the examination prior to his becoming a citizen and postpone consideration of the issuance of a certification until the applicant becomes a naturalized citizen of the United States. OPINION 67-102 (Unofficial) March 17, 1967 You asked our opinion as to whether a contract, entered into by the State Highway Department and the Savannah Electric Power Company whereby certain electric power poles will be permitted on land taken by condemnation for road purposes, is improper and illegal. The State Highway Department is authorized to use the procedures prescribed by Ga. Laws 1961, p. 517, when it condemns land for State-aid public road purposes in pursuance of any law so authorizing. Ga. Code Ann. 36-1301; State Highway Department v. Hatcher, 218 Ga. 299, 127 S.E. 2d 803 (1962). The law authorizing condemnation for State-aid public road purposes is found in Ga. Laws 1919, p. 247 (Ga. Code Ann. 95-170 I). That Act creates a system of State-aid roads to be designated, constructed, improved and maintained by the State through the 130 State Highway Department. The law authorizes and empowers the State Highway Department to condemn and acquire rights of way for maintaining, improving and constructing State-aid roads, and for the use of the system of State highways. Ga. Code Ann. 951701,95-1715,95-1724. In answer to your question, I would call your attention to the case of Benton v. State Highway Department, 111 Ga. App. 861 (1965). The property condemned in that case was used to relocate pipeline. The condemnor, State Highway Department, entered into an agreement with the Southern Natural Gas Company to furnish them with a different route for laying their pipeline. The court there held that these facts made the condemnation of the property necessary for State-aid road purposes. The circumstances you outline in your letter are similar to the Benton case. They involve the relocation of Savannah Electric and Power Company transmission lines in conflict with construction of Project No. U-041-2( 13) in Savannah. Therefore, following the Benton case, it is our opinion that the contract referred to is not improper or illegal. OPINION 67-103 March 20, 1967 In your letter you ask: (1) Who has the authority to deposit county bond tax money for the school system, the superintendent, board of education, or the road commissioner for the county? (2) Is it legal to deposit county tax money in a bank whose president is the major stockholder of the bank and who is also a member of the board of education? My opinion and the reasons therefore are as follows: OPINION (1) The statutory authority of the governing authorities of a county to designate the depository to be used by the county board of education applies to all school funds under the jurisdiction and control' of the school board. The county board of education may designate such a depository only when the county authorities fail to designate a depository. 131 (2) Assuming that the depository for all county school funds is chosen by the governing authorities of the county, the fact that a member of the county board of education is a stockholder of such bank would pose no problem under the State's conflict of interest laws. While the situation would be less clear if the depository were selected by the school board, it is my opinion that even here the fact that a board member was a stockholder in the bank would not result in a confict of interest violation. DISCUSSION 1. The answer to your initial question is contained in Ga. Code Ann. 89-811, which provides that: "The county authorities shall designate one or more solvent banks as depositories of all county moneys and moneys belonging to the school funds of the county . . . ; and if the county authorities shall not have provided for such a depository, the county board of education . . . may designate such a depository as to their funds ...." (Emphasis added.) The statute is inclusive and in my opinion applies to all county school funds, regardless of the source from which said funds are derived. 2. In reviewing the numerous statutes' of this State relating to "conflicts of interest" including, for example, the so-called "Honesty in Government Ac,t" (Ga. Code Ann. Ch. 26-50) and the various provisions relating to pecuniary interests of public officials in public contracts, see e.g., Ga. Code Ann. 89-904, 89-913 to 89-918, I came to the conclusion that the provision which most 1. In view of the large number of statutes relating to this general subject matter of "conflicts of interest" you can appreciate that a detailed discussion of each individual statute and the reasons for its inapplicability to the situation you are concerned with would require a legal treatise rather than a mere memorandum or letter in reply. For this reason, I have, after reviewing all of those conflict of interest statutes with which I am familiar, limited my analysis herein to that constitutional and statutory provision which I believe could most logically be argued to be violated by the situation in question. 132 plausibly could be argued to be violated by use as a depository of the bank in question is the provision contained both in Article VI I, Sec. III, Par. VI of the State Constitution [see Ga. Code Ann. 25606] and in Section 26-2904 of the Annotated Code of Georgia. The constitutional provision declares: "The receiving, directly or indirectly, by any officer of State or county ... of any interest, profits or perquisites arising from the use or loan of public funds in his hands or moneys to be raised through his agency for State or county purposes, shall be deemed a felony . . . ." It is my opinion, however, that the courts would most likely hold that this provision is inapplicable where the only relationship between the bank and the school board is the latter's use of the former as a depository. As stated in an unofficial opinion rendered by this office in 1959 on substantially the same question: "If your question has reference to a depository of educational funds that has been selected by the county authorities under Ga. Code Ann., 89-811, there is certainly no problem since the depository would not be selected by the county board of education unless the county authorities have failed to select said depository. The same would be true if neither the county authorities nor the county board of education acted and the depository was selected by the county school superintendent. Even if the selection of the depository was selected by the county board of education, it would be necessary to show that some benefit, direct or indirect could or would reasonably accrue to the corporate bank. Smith v. City of Winder, 22 Ga. App. 278,279 (1918), involved the deposit of municipal funds in a bank in which tQ.e mayor and one councilman were respectively an officer and director. The court held this was not illegal 'since it nowhere appears that any financial profit would result to said bank so named as depository, in which the mayor and council owned stock, or that any contract whatever was made between the city and the private corporation in which said city officials were interested whereby any benefit direct or indirect could or would reasonably accrue to said bank, the money to be placed therein being on demand and subject to immediate check " 133 "As to borrowing money, 63 C.J.S. 991, p. 558 provides: ' .. .it must appear, however, that some benefit, direct or indirect, could or would reasonably accrue to the contracting corporation or firm. ' . . .A transaction involving the borrowing of money by a borough from banks in which borough officials are interested does not fall within the ban imposed by the common law or statute; ...'"(See Op. Att'y Gen. (1958-59), pp. 105-6.). A subsequent official opinion of this office has reached the same conclusion in an analogous situation regarding the deposit of funds by the Board of Regents in a bank in which one member of that Board was an officer. See Op. Att'y Gen. (1960-61), pp. 466-67. OPINION 67-104 (Unofficial) March 21, 1967 This will acknowledge a copy of the petition of Bartow Mutual Insurance Company seeking a renewal and amendment to its corporate charter along with your Jetter requesting my advice as to the proper procedure which should be followed by petitioner in view of the fact that its charter has expired. I have reviewed the procedures set out in Ga. Code Ann. 561509 providing for amendments and renewals of insurance company charters as well as the procedures provided in Ga. Code Ann. 22-516 et seq. (Ga. Laws 1939, p. 250) for the renewal, extension and revival of corporate charters generally and Ga. Code Ann. 22-601 providing for revivor in general which apparently was superseded by the 1939 Act. Although Ga. Code Ann. 56-1509 does not mention the revival of insurance company charters, I am of the opinion that it was intended by the Legislature that this section apply to such revivals in lieu of Ga. Code Ann. 22-516 et seq. The title of this section reads "Amendment or Renewal of Charter." The first six subsections following the title deal with amendment procedures and subsection (7) provides that a petition for renewal shall follow the procedure set forth in subsections (2) thru (6). Since there is no time limit specified in the law for the filing of a 134 petition for renewal, it is my opinion that it was intended that Ga. Code Ann. 56-1509 apply to revivals the same as renewals of insurance company charters and that such revivals and/or renewals be approved by the Insurance Commissioner prior to issuance of a certificate by the Secretary of State. There is no reason, in my opinion, to assume that the Legislature intended a different procedure to apply in the case of an expired charter. This is in accord with an official opinion dated September 13, 1965, to the Insurance Commissioner in which I ruled that a petition for revival and renewal was properly presented under Ga. Code Ann. 561509. This conclusion is buttressed by the fact that Ga. Code Ann. 56-1509 specifically provides for approval of amendments and renewals by " ... members, if a mutual insurer ... ," whereas Ga. Code Ann. 22-516 et seq. refers only to stockholders. I also point out that these latter provisions seem to treat renewals, revivals and extensions synonymously in providing: " . . . such corporation may, at any time, renew, extend or revive its charter ..." (Emphasis added). With reference to your question about the length of time between the meeting of the members on August 20, 1966, and the date of the petition, February 27, 1967, I do not believe this presents any legal deficiency. In an official opinion dated November 4, 1965, to the Insurance Commissioner, I concluded that petitions authorized under Ga. Code Ann. 56-1509 should be filed within a reasonable time after approval of the stockholders. OPINION 67-105 March 22, 1967 You have asked the following question: "Can the Board of Pardon and Parole amend one of its previous orders by adding as an additional requirement a proviso that would require the probationer to make restitution?" It is my understanding that the probationer in the instant case was sentenced to serve ten (10) years; one year in confinement and the balance on probation. Subsequent to the original sentence, but within the first year thereafter, the Pardon and Parole Board, at the request of the trial judge, remitted the remaining portion of the defendant's confinement to probation. The question now involved is whether or not, subsequent to the happening of the above referred- 135 to events, the Board has the authority to amend its remission order and require that the probationer now commence restitution as a condition of continued probation. I have been unable to find any authority directly on point. However, it is my opinion that the absence of any authority to amend an order in the proposed manner, when viewed in conjunction with the overall relative intent and purpose, must be construed as an intent on the part of the legislature to exclude such authority from the Board. It is, therefore, my opinion that the Board does not have the authority to amend its previous order in the manner referred to. OPINION 67-106 (Unofficial) March 22, 1967 This is to acknowledge receipt of your letter requesting information concerning the license of Ellie B. Bishop, a Georgia resident. You are presently holding this license pursuant to an accident which occurred in Alabama and under the provisions of Ga. Laws 1958, pp. 694, 695 (Ga. Code Ann. 92A-609c). On December 7, 1966, Mr. Bishop filed a petition for Bankruptcy in the United States District Court for the Northern District of Georgia listing the Department of Public Safety as an unsecured creditor in the amount of $10, 100. A show cause order has been issued to you by Judge Claude D. Hughes, Referee in Bankruptcy. Ga. Laws 1964, p. 225 (Ga. Code Ann. 92A-608) provides: "The Director may . . . reinstate the license . . . only in the event said operator has qualified as required in this Chapter as a self-insurer, or produces evidence to the Director that he has qualified as required in this Act as a self-insurer, or produces evidence to the Director that he has obtained a policy of liability insurance, issued by a company authorized to do business in this State, or produces evidence that he has obtained a surety bond from a surety company ..." As I understand your question, Mr. Bishop did not have liability insurance nor proof of financial responsibility at the time of the accident. Since the accident, he has not furnished your Department with any proof of financial responsibility nor bond as required by the above-mentioned statute. 136 It is my opinion that the Department of Public Safety is not a creditor, and you may continue to hold Mr. Bishop's driver's license until a court of competent jurisdiction rules differently. OPINION 67-107 (Unofficial) March 23, 1967 In response to your letter please be advised that Georgia does have a law which provides that meetings of public agencies be open to the public. Adopted in 1965 (Ga. Laws 1965, p. 118; Ga. Code Ann. 23802), it provides as follows: "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, shall be public meetings: Provided, however, that before or after said public meetings 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." The exception relating to "executive sessions" is designed to permit discussion of such things as the selection of property to be acquired by the governmental body, and the employment of personnel. Such executive sessions are used to preclude the possibility of speculation and escalation in land prices, and frank discussion of the characters of prospective employees. Legislation proposed at the 1967 Session of the Georgia General Assembly, now adjourned, which would have removed the exception, failed to pass. OPINION 67-108 (Unofficial) March 24, 1967 You posed certain questions pertaining to condemnation procedures and authority with respect to development of the Beaverdam Creek Watershed development. 137 I will answer your questions in the order set out in your letter: Question: l. When a watershed area is located in two or more counties is it legal for one county to condemn property in their county for purpose of the watershed development? Also is it legal for the Soil and Water Conservation District Supervisors to do this? Answer: a. Soil and Water Conservation Districts are granted the right of eminent domain for acquiring easements and land rights for small watershed projects by Ga. Code Ann. 52201. This section provides, however, that certain conditions precedent must be complied with before condemnation proceedings may be initiated. These prerequisites are: l. that the project be approved by the State and Federal Governments; 2. that 90 per cent or more of the separate property owners of the necessary easements and land rights have gratuitously given such easements and land rights in writing; 3. and that the District finds that it cannot acquire by voluntary contract the remaining necessary easements and land rights. Upon such showing the District may proceed to condemn the remaining easements and land rights necessary for completion of the small watershed project, provided that in any such proceeding the fee simple title must be condemned to all land not otherwise acquired which will be covered by permanent ponding or permanent flooding. b. Counties are specifically granted the right of eminent domain for completion of small watershed projects by Ga. Code Ann. 36-1401. With respect to a small watershed project instituted under the cosponsorship of a soil and water conservation district and a county or counties it is my opinion that either the District or the counties may condemn property for the project in compliance with the pertinent statutes. Question: 2. In condemnation proceedings for easement only, does the 138 agency bringing proceedings have to get the property surveyed and appraised and put the appraised value in trust until the courts have ruled on the case'? Answer: It is not necessary for the agency bringing condemnation proceedings to place any appraised amount in trust prior to a court ruling. However, if assessors are appointed as provided in Ga. Code Ann. 36-1109 the condemning authority cannot appeal the assessors' award without tender of the amount of the award to the condemnee or payment into the registry of the court. (See Woodside v. City of Atlanta, 214 Ga. 75 (1958).) Also the full sum awarded in any condemnation proceeding must be tendered to the condemnee, or paid into court in the event the condemnee refuses to accept payment, before the condemnor may enter upon, occupy, or subject the land to its use. Question: 3. Should the Broad River Soil and Water Conservation District condemn property, can the County pay the cost of the easement'? Can any resident of a County bring suit to prevent the County Commissioners from using county tax money for watershed development'? Answer: As stated in the reply to question one, above, counties have been granted by statute the power of eminent domain for construction of small watershed projects. In addition, the Georgia Constitution, Article VI I, Section VI, Paragraph I (a) (Ga. Code Ann. 2-590 I) provides, inter alia, that the State, public agencies, and counties, may contract with each other for any period not to exceed 50 years for the use by such subdivisions of any facilities or services of the State, State institutions, or public agencies, provided such contract shall deal with such activities and transactions as such subdivisions are by law authorized to undertake. It is my opinion that pursuant to the above constitutional provision a county participating in a small watershed project could pay the cost of condemning necessary easements and land rights upon entry into an appropriate contract or agreement with the participating Soil and Water Conservation District. 139 Question: 4. Must the Soil and Water Conservation District have funds on hand to pay for any damage awarded by the courts, before they can start proceedings? Answer: A Soil and Water Conservation District need not have funds on hand merely to institute a condemnation proceeding. However, as stated earlier the amount of the award must be tendered the condemnee or paid into court in order to appeal from an award of assessors, and the land may not be used or occupied until the condemnation award is paid. Therefore, it would not be advisable to initiate such condemnation proceedings unless adequate funds were available or a positive assurance existed that the funds would be available when needed. Question: 5. Should the County or the Soil and Water Conservation District have to purchase the property in question, rather than secure an easement, can the property be sold at the Courthouse or must it be used only for purposes of the watershed development? Answer: It is provided in Ga. Code Ann. 5-20 17 that a district may sell, lease, or otherwise dispose of its property, real or personal, or interests therein, in furtherance of the purposes and provisions of Part VI I I of Title 5. This section gives broad powers of property disposition to the Soil and Water Conservation Districts. However, Ga. Code Ann. 5-2201 contemplates condemnation of necessary easements and land rights, and therefore it is unlikely that any land or interests condemned would not be necessary for purposes of the watershed development. In the event the fee simple title to land is condemned as necessary to a watershed project, and subsequently it should become surplusage to the project, it is my opinion the District could dispose of it in accordance with Ga. Code Ann. 5-2017. 140 OPINION 67-109 (Unofficial) March 24, 1967 You have stated that the Veterans' Administration, being an agency of the Federal Government, is not required to pay an intangible tax in Georgia upon the recording of a long-term note secured by real estate. You ask whether or not a transferee of such note and security interest would be required to pay the intangible tax where his transferor is an exempt organization. This question has been answered by the Attorney General in an official opinion addressed to the State Revenue Commissioner, dated December 15, 1954. Question 14 of that opinion is quoted for your information as follows: "Question 14. Where organizations, such as educational and charitable institutions and national banks which, by other statutes, are exempt from the payment of this 'recording' tax, transfer such long-term notes held by them to an individual or organization which is liable for the payment of the tax under this Act, must the 'recording' tax be paid upon such a transfer, and if so, by whom? "Answer to 14: The transferee must pay the 'recording' tax upon such a transfer. The Act (Section 4, Part I) imposes the tax upon the 'holder' of the long-term notes secured by real estate. Hence, if an individual or organization not exempt from the payment of this tax becomes the holder of a longterm note previously recorded and held by an exempt organization and upon which the 'recording' tax had not been paid by such exempt organization, the subsequent non-exempt holder of the note is liable for the payment of the tax. The subsequent non-exempt holder of the instrument must pay the tax upon transferring the instrument on the clerk's record." OPINION 67-110 (Unofficial) March 27, 1967 You state that an election is to be held to fill a vacancy on the Cobb County Board of Education for District 3. You have asked 141 whether or not the person receiving the highest number of votes cast in the district shall be elected as a member of the Board of Education. A local amendment to Article VII I, Section V, Paragraph I of the Constitution of Georgia of 1945 provides that the person who receives the highest number of votes shall be the member of the Board of Education from the district in which he has run. Ga. Laws 1962, pp. 971, 973. The Georgia Election Code declares that no person shall be elected to public office unless he has received a majority of the votes cast to fill the office. Ga. Code Ann. 341514. The Election Code, being an act of the General Assembly, is subordinate to the local constitutional provision. Constitution of the State of Georgia of 1945, Article XI I, Section I, Paragraph I I (Ga. Code Ann. 2-8002). Accordingly, it is my opinion that the person receiving the highest number of votes cast to fill the office of member of the Cobb County Board of Education from District 3 shall be declared elected to that office. In response to your allusion to runoff elections, we observe, in the light of the constitutional provision that the winner is the person receiving the highest number of votes, that it is extremely unlikely that you would be faced with the situation in which the original election had failed. You will observe that runoff elections under the Georgia Election Code are triggered by a failure of any candidate to receive a majority of the votes cast (Ga. Code Ann. 34-1514), whereas this particular election requires only an accumulation of the highest number of votes cast to elect a member to the Board of Education. Ga. Laws 1962, pp. 971,973. OPINION 67-111 (Unofficial) March 27, 1967 In your letter, you ask the following questions: (1) Is a person purchasing a used car after December 31, 1966, having a valid 1966 tag, and having properly transferred ownership on reverse of the tag receipt required by law to purchase a 1967 tag within 3 days, and failing to do so, be required to pay a penalty in the amount of 20% of the tag price? (2) What disposition is made of such penalty, once collected, under law? 142 (3) Are local tag agents, not on fee system, authorized by state law to receive for their own use, the $1.00 officer's fee charge? What is the purpose of this $1.00 fee according to law? As I interpret your first question, you are asking whether a tag issued for the previous year may properly be transferred to a new owner of the vehicle after December 31, and if a new tag is not purchased by the new owner of the vehicle within three days, will the new owner be subject to the penalty provision in the Motor Vehicle License Tax Law. The Department of Revenue Regulation No. 560-10-2.1501, subparagraph (e) (1), provides in part: "When a motor vehicle is sold to a new owner, the tag of the previous owner may be transferred to the new owner and the following rules shall apply: (1) First Quarter- January-February-March-April: (a) Previous year's tag- The license plate issued the previous year can not be transferred. A purchaser who acquires a vehicle in the first quarter of a year which does not bear a license plate for the current year must purchase a new license plate. In accordance with this rule, a new owner must buy a current year license tag and such tag must be purchased within three days or be required to pay the penalty provided for in Ga. Code Ann. 68-20 l. All penalties collected are first mailed to the office of the State Revenue Commissioner and each calendar month the State Revenue Commissioner remits to the respective officers the full amount of such penalties accredited to the endorsing officers for the preceding calendar month. In all counties and cities of 135,000 or more, according to the 1960 census, the penalty shall be paid to the fiscal authorities of such counties and cities. If the endorsing officer is a State Highway Patrolman, or a Motor Vehicle License Inspector, the penalty shall be paid to the State Treasury. Local tag agents act as a Motor Vehicle License Inspector in the endorsement of license plate applications. (Department of Revenue Regulation No. 560-10-2.704.) Therefore, all penalties accredited to them shall be paid to the State Treasury. 143 The $1.00 fee charge for a delinquent application is simply a part of the penalty and is disposed of in the same manner as the 20% penalty. A local tag agent is never entitled to any part of the penalty. OPINION 67-112 March 28, 1967 You requested an opinion concerning the tax status of the Israeli Consuiate General and other consulate officials with respect to Georgia taxation, particularly taxation on the purchases of motor fuel. I have reviewed the treaties and international agreements the United States has with Israel and find no convention concerning the rights and privileges of consuls. Georgia Law makes no provision for any exemption from State taxation in favor of any consulate official and the only exemption they would enjoy or could claim would be one which was granted to them by the United States pursuant to the treaty lawfully adopted. There being no treaty with the United States concerning tax exempt status for consulate officials, it is my opinion that they are to be taxed as other citizens. OPINION 67-113 March 28, 1967 You request our investigation into the Georgia Association of Deputy Wildlife Rangers, Inc., a corporation recently formed in Pickens County, Georgia, as to possible usurpation of powers granted the State Game and Fish Commission under the Deputy Wildlife Ranger program. We have examined the applicable rules of Georgia law concerning the names which may be used by a corporation, as well as its allowable activities, and have tentatively concluded for the reasons hereinafter set forth that a good arguable basis for legal action by the State to dissolve this charter does exist. As to the name of the corporation, there is general support among the Georgia cases for the legal position that an affected party can bring an equitable action to prevent a deceiving of the public through the use of a particular corporate name. See Lane v. 144 Evening Star Society, 120 Ga. 355 (1904); Rome Machine and Foundry Co. v. Davis Foundry Machine Works, 135 Ga. 17 (1910). We readily admit that the relevant cases above involved infringements of this type against private parties. However, we see no reason why the State would not have an equivalent power in the same regard. I am particularly alarmed about the provisions of the corporation dealing with the powers in that they indicate that the corporation is a State-supported organization and that the members thereof are empowered to aid, assist and participate in the enforcement of the laws of the State of Georgia and to assist Wildlife Rangers and other law enforcement agencies in the enforcement of the Game and Fish laws. The wide-ranging activities of this private corporation in the area involving enforcement of the Game and Fish laws could also provide a basis for legal action by the State since in the case of Rogers v. Toccoa Power Company, 161 Ga. 524 (1926), it was held that private parties cannot organize for the purpose of usurping governmental functions. 1 feel that the Rogers case, dealing with an unauthorized infringement upon the eminent domain powers of the State of Georgia, is analogous to our situation in that the position of our Deputy Wildlife Ranger is created by statute and assigned enforcement functions equivalent enough to require a bond. See Ga. Laws 1966, pp. 151-152; Ga. Code Ann. 45-113.1 thru 45-113.2. We therefore will make additional research into this matter and begin preparing a petition to the Superior Court of Pickens County, Georgia, for dissolution of this charter. OPINION 67-114 (Unofficial) March 28, 1967 Your first question deals with the applicability of the Motor Vehicle Tag-Tax Act to municipal ad valorem taxation of motor vehicles. Section 9 of the Act provides: "A tax collector or tax commissioner receiving the return shall collect all ad valorem taxes imposed upon such vehicle, irrespective of the taxing authority levying such taxes; and no other official shall be authorized to collect such taxes." (Emphasis added.) 145 Section I of the Act provides that the procedures described in the Chapter for collecting the taxes imposed therein, shall be exclusive. These Sections, and the Act as a whole, clearly indicate that the Act levies a tax for municipal as well as state and county purposes. The tax rate adopted by the Act with respect to a municipality or other jurisdiction having authority to levy such taxes is to be at the mill rate assessed by such taxing authorities on tangible property for the previous calendar year. You also ask by what authority the Commissioner valued motor vehicles for 1967 at 40% of fair value. Section 10 of the Act provides that the Revenue Commissioner shall prepare a uniform evaluation of all motor vehicles for use as the taxable value thereof. The Act does not specify whether that list is to be as 100% of the value or at some lesser or other value, but apparently leaves that entirely to the Commissioner's discretion. There apparently has been little uniformity with respect to tax values in Georgia previously. However, the General Assembly recently has indicated a preference for uniform values and equalization of values. The Commissioner could apparently adopt whatever assessment ratio he deemed advisable so long as the same was uniform. OPINION 67-115 March 29, 1967 You have asked whether or not the Board of Corrections would be authorized to expend funds for the maintenance and repairs of a facility which the Board contemplates leasing in order to make maximum use of said facility. This office has consistently ruled that it is unlawful to expend State funds in order to make permanent improvements to property unless the State owns the fee interest in the property concerned or unless the improvements are of such a nature or character to be subject to either recoupment or removal by the State at the time the State's use of the property terminates. See Op. Att'y Gen., 1962, p. 398. The premise of these rulings is predicated upon the prohibitions against the State granting any gratuity and the expenditure of State funds for the benefit of private citizens. Thus, it would be unlawful to expend State funds in the present 146 situation if the effect of same would be to provide an improvement which would inure to the benefit of the lessor at the expiration of the lease. If, however, the repairs in question are: (I) of the type that relate primarily to maintenance or upkeep; (2) are not capital improvements; (3) are not considered permanent in the sense that they do not become a part of the realty; (4) are of such a nature to be easily removable by the State at the end of the lease term; and (5) the State has a right pursuant to the provisions of the lease to remove same, I can see no objection to such expenditures. It is, therefore, my official opinion that, subject to the foregoing, the Board of Corrections will be authorized to make the expenditures in question. OPINION 67-116 March 30, 1967 You inquire as to how grants to counties from the State under Ga. Code Ann. 92-1404 may be spent. Specifically, you inquire as follows: "Please give us your opinion as to the legality of the expenditure by counties from State grant funds for the upkeep and operation of a county farm where prisoners are used as laborers on road construction and maintenance. "Also, we would like to have your opinion as to whether or not a county could legally charge depreciation of road machinery against the State grant funds." Let me first call to your attention that these funds are derived from "motor fuel taxes." The Constitution of the State of Georgia provides, inter alia, that this revenue (Article VI I, Section IX, Paragraph IV (Ga. Code Ann. 2-6204) ) is: " ... for grants to counties for aid in county road construction and maintenance as provided by law . . ." 147 The law referred to in the Constitution is contained in Ga. Code Ann. 92-1404; therefore, these funds must be spent in accordance with the provisions of the Constitution and this statute. There is some difficulty in making generalization of what these funds may be used for. However, it is clear that counties would be limited to use the funds "exclusively for the construction and maintenance of the public roads," as provided in Ga. Code Ann. 92-1404, supra. Construing this section in whole and keeping in mind the limitations imposed by the Constitution, it is my opinion that a reasonable construction of the statute would be one which best effectuates the end that funds so made available would be used directly and not indirectly for the purposes stated, viz.; " . . . exclusively for the construction and maintenance of public roads." Therefore, 1 am constrained to take the position that funds received by counties under this law must be used for purposes which have as their sole and only function the construction and maintenance of public roads. My interpretation, then, of the language quoted is that the funds authorized may be used for administrative expenses directly and exclusively involved in the construction or maintenance activities of the public roads, but not for the expenses of other county matters. This in itself is a generalization, and I could only say that, to be a legitimate and legal expenditure, the item would have to be traceable solely and directly to construction and maintenance and would have to be an item that would be customarily and usually associated with the construction and maintenance of public roads. Therefore, applying the above reasoning, it is clear that a county may not use the State grant funds for the upkeep and operation of a county farm although prisoners are kept there who are used as laborers on road construction and maintenance. Your second question poses a more difficult problem. The purchase of construction and maintenance equipment is proper, provided the primary function of same is for construction and maintenance of roads. For example, these funds may not be expended for the purchase of a tractor since it would appear that the primary purpose of a tractor would not be for road maintenance or construction. This rationale would not apply to bulldozers and motor graders. Here we are not talking about "purchases" of road machinery; we are talking about charging 148 depreciation of road machinery against the State grant funds. I do not believe this would be using the funds exclusively for the construction and maintenance of public roads, nor would this purpose have as its sole function, the construction and maintenance of public roads. Therefore, in my opinion, your second question must be answered in the negative. OPINION 67-117 (Unofficial) March 30, 1967 You have posed the following questions: (I) If George Wallace should run as a third party candidate, will his presidential electors have to get up petitions for their names to be placed on the ballot? (2) If there are three sets of presidential electors and no set gets a majority, will there be a runoff, or will the set getting a plurality serve? Will the General Assembly elect the electors? Generally speaking, each candidate for Federal, State or county office, is required by the Georgia Election Code to accompany his notice of candidacy with a nomination petition. Ga. Code Ann. 34-100l(c). There are, of course, exceptions to this requirement. For example, a nominee of a political party nominated in a primary held by such party is not required to file a nomination petition. Ga. Code Ann. 34-100l(c). There is also an exception regarding a nominee of a political party for the office of presidential elector when such party has held a national convention and therein nominated candidates for President and Vice President. Ga. Code Ann. 34-100 I(c). A "political party" is defined by the Code to mean a political organization which at the preceding gubernatorial election nominated a candidate for governor who polled at least twenty per cent of the total vote cast in the State for governor, or which at the preceding presidential election nominated a candidate for President who polled at least twenty per cent of the total vote cast in the nation for that office. Ga. Code Ann. 34-103(u). It thus appears that if Geoge Wallace were to run as a third party candidate, nomination petitions would be required in order for his name to be placed on the ballot. 149 Ga. Code Ann. 34-1514 provides that no candidate shall be elected to "public office" in any election unless such candidate shall have received a majority of the votes cast to fill such office. The words "public office" are defined as "every federal, State and county office to which persons can be elected by a vote of the electors under the laws of this State." Ga. Code Ann. 34-l03(y). It is perhaps true that the office of President of the United States is not one to which a person is elected by the vote of the electors of this State, for the reason that technically the voters elect the presidential electors and not the President. However, the office of presidential elector is one to which persons are elected by a vote of the electors of this State, and hence it appears that the office of presidential elector would be a "public office." Therefore, ifthere were to be three sets of presidential electors, Ga. Code Ann. 341514 would apply and a majority vote would be required. If there were no majority a runoff would be required. As you know, the election of the Governor by the General Assembly was due to specific Georgia constitutional provisions relating to that office. There is no comparable provision calling for the election of presidential electors by the General Assembly. OPINION 67-118 (Unofficial) March 30, 1967 You state that your data processing firm has been approached about the possibility of putting voter registration rolls on punched cards. In response to your question, the laws relating to voter registration and the records pertaining thereto may be found in the Georgia Election Code. I direct your attention more specifically to Chapters 34-6 and 34-13 of the Election Code. You have asked whether the Election Code in any way restricts the use of punched cards for voter registration purposes. The Code does not mention the cards used in data processing machinery in connection with voter registration. It is my opinion, however, that the Code does restrict the use of such cards. Many of the duties to be performed by registrars in connection with registration of voters and preparation of lists of electors do not appear to be compatible with the use of data processing cards prepared by an "outside" firm. 150 You have asked whether the punched cards could be taken out of the courthouse. Voter registration records may not be removed from their prescribed repositories. Ga. Code Ann. 34-610. Your third question asks whether the registration rolls required by the State would be acceptable if printed by a computer. I assume that you refer to the various electors' lists. The preparation of electors' hsts is dealt with in Ga. Code Ann. 34-622, the import of which appears to be that the registrars shall prepare the lists; not that another person over whom the registrars have no real control shall be permitted to do so. As you may know, the registrars are sworn to properly discharge their duties in much the same manner as any other person holding a public trust. Ga. Code Ann. 34606. Your last question deals with removing the punched cards from the courthouse to the polling places for the purpose of sorting them out as electors vote so that the registration lists could be purged. While I am of the opinion that an elector's registration record may not be carried about in the county, I should like to call your attention to several of the duties of election managers which indicate that this procedure may not be compatible with the Code. When an elector votes, the manager must check his name on the electors' list. Ga. Code Ann. 34-1310. The checked list is ultimately returned to the registrars. Ga. Code Ann. 34-1330. I do not believe that the separation of data processing cards so as to indicate who had voted and who had not would meet the requirements of Ga. Code Ann. 34-1310. OPINION 67-119 March 31, 1967 You wrote requesting advice and direction concerning four (4) inmates who may be qualified to attend college without the confines of a state prison institution. You would like to know whether or not the Board of Corrections could, by policy, authorize these inmates to attend college. I have been unable to find any authority which would authorize the Board of Corrections to permit the service of a penal sentence outside the confines of a prison facility, nor do I believe the provisions of Ga. Code Ann. 77-319(a) are sufficiently broad to include or permit an activity of this type. 151 Therefore, in answer to your specific inquiry, it is my official opinion that the Board of Corrections could not, by policy and direction, authorize the attendance of these inmates at a college without the confines of the institution. OPINION 67-120 (Unofficial) March 31, 1967 You ask for an opinion regarding the financing of a new library building for Griffin and Spalding County. The situation, as I understand it from your letter, is as follows: The local library board of Spalding County is desirous of raising local matching funds to obtain a federal grant needed to assist in the construction of the new facility. Ordinarily, the required local funds would be raised through general obligation bonds of the county. For various reasons, however, this method is not deemed feasible in the present case. It is instead proposed that the City of Griffin construct the building through a loan of twenty (20) years or less and then rent the facility to the county at an annual rental sufficient to cover the payments (principal plus interest) on such loan. You indicate that the local library board believes that such a lease agreement (up to 20 years) could legally be executed between the county and city pursuant to Article VI I, Section VI, Paragraph I of the State Constitution (Ga. Code Ann. 2-590 I) and that the county could legally raise taxes to pay for its rental of the building under Article VII, Section IV, Paragraph I of the State Constitution (Ga. Code Ann. 2-570 I) and Ga. Code Ann. 92-370 I. I must point out that in answering your letter, I proceed on the assumption that no question exists concerning the legal authority of the City of Griffin to borrow funds via a twenty-year loan in order to construct the building. I have not researched this point in view of the fact that the question does not appear to be directly raised by your letter and in any event would involve considerations of purely local rather than general law (which could more properly be determined by local counsel). Subject to the foregoing limitations, qualifications and understanding, my answer to your letter is as follows: OPINION Assuming that the City of Griffin possesses legal authority to 152 borrow funds via a twenty-year loan for the purpose of constructing the library building in question, it would be legal for the city and county to enter into the proposed agreement whereunder the building would be leased to the county for the term of the loan at an annual rental sufficient to meet the loan payments. It would also be legal for the county to levy taxes for the purpose of making the rental payments. DISCUSSION There is no question as to the authority of Spalding County to raise taxes for the maintenance of public library facilities. See Article VI I, Section IV, Paragraph I of the State Constitution (Ga. Code Ann. 2-570 1) and Ga. Code Ann. 92-370!. It is likewise quite clear that Article VII, Section VI, Paragraph I of the Constitution (Ga. Code Ann. 2-5901) vests counties and municipalities with authority to contract with each other for the use of facilities or services (which would include library facilities) for any period up to fifty years, so long as such contracts shall deal with activities and transactions said political subdivisions "are by law authorized to undertake. " 1 It might be questioned, of course, whether notwithstanding Article VI I, Section VI, Paragraph I (Ga. Code Ann. 2-5901) Spalding County, by virtue of its incurrence of a long term debt (i.e. twenty years) under its proposed lease agreement with the city, would be violating the debt limitation provisions of Article VI I, Section VI I, Paragraph I of the Constitution (Ga. Code Ann. 2-6001). Fortunately, this question has been laid to rest by the Supreme Court of Georgia in Sheffield v. State School Building Authority, 208 Ga. 575 (2), 581 (1952), wherein it was pointed out that such provision (i.e. 2-6001) expressly provides that it is applicable "except as in this Constitution provided for" and that inasmuch as contracts pursuant to Article VII, Section VI, Paragraph I (Ga. Code Ann. 2-5901) are "in the Constitution provided for," this last mentioned section lifts the contracts provided for therein out from under the restrictive provisions of Ga. Code Ann. 2-600 l. l. Authority for counties to undertake such activities as are here contemplated (i.e. providing library facilities for their citizens) is implicit in Article VII, Section IV, Paragraph I of the Constitution [Ga. Code Ann. 2-5701] and Ga. Code Ann. 92370 l. As has already been pointed out, we have proceeded on the assumption that no question exists regarding the authority of the City of Griffin to carry out its part of the proposed arrangement. 153 OPINION 67-121 April 3, 1967 You requested an official opinion relative to the computation of a state sentence that was imposed subsequent to a federal sentence where the state sentence is silent as to whether it is to run concurrently or consecutively to the federal sentence. Ga. Code Ann. 27-2505 provides in part: "It shall be the duty of the several judges, in the imposition of sentence for violation of the penal laws, to specify that the term of service under such sentence shall be computed from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated, ..." Ga. Code Ann. 27-2510(b) provides: "Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, such sentences shall be served concurrently, the one with the other, unless otherwise expressly provided therein." In view of the foregoing laws, it appears that the sentence begins to run from the date of rendition unless the sentencing judge expressly provides that it is to follow the sentence previously imposed by the federal court as was done in Roberts v. Weeks, 182 Ga. 346, 185 S.E. 338 (1936). Therefore, it is my official opinion that the state sentence should be computed from the date of rendition unless the sentence specifies that it is to run consecutively to the federal sentence. OPINION 67-122 (Unofficial) April4, 1967 You ask if you are eligible to serve as a county tax assessor and at the same time hold the office of a Justice of the Peace. Ga. Code Ann. 92-6907, provides as follows: "The members of the board of tax assessors shall be ineligible to hold any State, county or municipal offce during the time they hold their offices, but they may be reappointed to succeed themselves as members of said board." \54 In Long vs. State, 127 Ga. 285 ( 1906), the Court held that a Justice of the Peace is an officer of the State. It is my opinion, based on the above citations, that you may not serve as a member of the board of tax assessors and at the same time hold the office of Justice of the Peace. OPINION 67-123 (Unofficial) April 4, 1967 You ask several questions relating to the procedure for legalizing the sale of alcoholic beverages in DeKalb County. The laws relating to legalizing the sale of alcoholic beverages on a local option basis are contained in an Act known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors", Ga. Laws 1937-38, Extra. Sess., p. 103, as amended (Ga. Code Ann. Ch. 58-10). Pursuant to this Act the Revenue Commissioner is authorized to promulgate Rules and Regulations relating to the sale and distribution of distilled spirits in Georgia, and both the laws and regulations (as revised through June 15, 1964) are contained in a booklet which I am enclosing for your perusal. The latest regulations are on file with the Secretary of State, and you may obtain copies thereof for a nominal cost by writing directly to him. In answer to your first question, Ga. Code Ann. 58-1002 provides that the license authorizing the sale of alcoholic beverages is "authorized only in those counties in which a majority of those voting at an election, to be held for the purpose, vote in favor of taxing and controlling alcoholic beverages and liquors as hereinafter provided for." The election shall be called when a petition signed by at least 35% of the registered voters qualijled to vote at the general election immediately preceding the presentation of the petition to and is }lied with the ordinary of the county. Ga. Code Ann. 58-1003. (Emphasis added). Accordingly, the petition procedure and resulting favorable Special Referendum Election is the only method presently available which could legalize the sale of alcoholic beverages in your county. In regard to the exact number of registered qualified voters required to sign the petition, I contacted Mr. Frank Thomas, Chief !55 Registrar for DeKalb County, and he informed me that there were 129,993 registered voters in DeKalb County for the general election of 1966. The precise number of voters required for the petition would vary according to the number of voters registered for the general election immediately preceding the presentment and filing of the petition to the Ordinary. If the petition was presented and filed prior to the closing of the registration books for the general election of 1968, then the number of voters required on the petition would be 35% of the 129,993 registered voters referred to above. In answer to your second question, there is no provision which would authorize DeKalb County to indulge in such proprietary as opposed to governmental operation: to own and operate liquor stores. There are numerous constitutional considerations precluding such county action but only one need be referred to in order to see the logic of this position. The Act in question concerns itself with three basic classes of licenses: as a manufacturer, a wholesaler, or a retailer. In addition to the State license, a municipal license, if the proposed place of business is within the corporate limits of the municipality, or a county license, if the proposed place of business is without the corporate limits of the municipality must first be obtained. Ga. Code Ann. 58-1031. Although the following case is concerned with a municipality, the same principles apply to proposed county ownership. In City ofAtlanta, eta!. vs. Henry Grady Corporation, et al., 220 Ga. 249 (3) (1964), the Court held: "That statute empowers municipal corporations to issue annual licenses for the retail sale of liquor within their boundaries. lt also gives them . . . 'authority to determine the location of any ... retail business licensed by them' and '... full authority to pass on the character, reliability, and other qualities of fitness before issuing such license.' "No provisions of the statute is more vital than these. Successful regulation and control of the liquor business is dependent upon the proper exercise by the municipalities of our State. "A pecuniary interest by the municipality in the volume of sales of a particular retail dealer is not conducive to the proper exercise of this authority. The combination of power to license and pecuniary interest in the liquor business creates a conflict 156 of interest which can only result in abuse of the power to license and in a breakdown in the regulation and control of liquor. ..." ln answer to your third question, under the authority of McCluney, et a!. v. Stembridge, Ordinary, et a/., 206 Ga. 321 (1950), such a petition would be valid. In answer to your fourth question, I presume that you mean to pay canvassers with public funds, and such a payment would be unconstitutional. Article VII, Section IV, Paragraph II, lists the purposes for which a county may tax. The fourteen purposes listed therein are exclusive, and any attempt to use county funds except for these purposes, such as paying the canvassers, would be null and void. Since my opinion regarding question two is that it would be illegal for a county to own and operate liquor stores, it is unnecessary to answer your remaining questions. OPINION 67-124 AprilS, 1967 You ask for my official opinion as to whether the Georgia Civil Defense Act of 1951 (Ga. Code Ann. 86-1801 et seq.) authorizes city and county governments to appoint the various boards necessary to implement the Georgia Plan for Emergency Management of Resources. Ga. Code Ann. 86-1809 provides in relevant part that "(a) the governing body of each city of this State having a population of 1,000 or more . . . and each county of the State is hereby authorized and directed to establish a local organization for civil defense in accordance with the State civil defense plan and program .... Each political subdivision shall have power and authority ... to appoint, employ, remove, or provide, with or without compensation, air raid wardens, rescue teams, auxiliary fire and police personnel, and other civilian defense workers." I have reviewed the State of Georgia Plan for Emergency Management of Resources and find it to be an integral and vital part of the civil defense program of this State. Accordingly, it is my official opinion that, as part of such program, the Civil Defense Act of 195 1 authorizes city and county governments to make the appointments necessary to implement the program. 157 OPINION 67-125 (Unofficial) April 6, 1967 You ask with whom a candidate for the office of Justice of the Peace qualifies. You have also asked for advice concerning the date upon which qualifications should close. Since you have indicated that you are concerned with Ga. Code Ann. 24-406, it is understood that the election is to be a special election to fill a vacancy, rather than a regular election. The candidates should file their notices of candidacy with the Ordinary, and since this is a _special election, the qualification deadline is fifteen days prior to the date of the election. Ga. Code Ann. 34-100 I(b). Although you have not inquired about it, I should like to call your attention to a conflict between Ga. Code Ann. 24-406 and the Georgia Election Code. Ga. Code Ann. 24-406 provides that the Ordinary shall issue the call for an election to fill a vacancy in the office of Justice of the Peace, and that the election shall be held within thirty days from the date the vacancy occurs. Ga. Code Ann. 34-806 requires that at least thirty days intervene between the call of a special election and the date upon which it is held. Since the Election Code is the latest expression of the General Assembly on this subject, it is my opinion that the Election Code governs. Therefore, the election should not be held within thirty days of the da.te of the vacancy as provided in Ga. Code Ann. 24-406. Your letter states that Ga. Code Ann. 24-406 provides that the Ordinary shall call a special election to elect a Justice of the Peace, but that the authority for conducting the election and for certifying the results of the election are given to the Notary Public Ex-Officio Justice of the Peace. It is manifest that the Georgia Election Code contemplates and requires that the Ordinary conduct elections. See generally, Chapter 34-13 of the Election Code. It is my opinion that the Ordinary should conduct the election. It is also the duty of the Ordinary, in the case of an election to fill the office of Justice of the Peace to transmit a certified copy of the returns to the Secretary of State. The Secretary of State then presents the returns to the Governor. Ga. Code Ann. 34-1508(a). Because of the variances between Ga. Code Ann. 24-406 and the Georgia Election Code, it is my opinion that the Ordinary should conduct the election, and shouldcertify the returns to the Secretary of State. 158 OPINION 67-126 (Unofficial) April II, 1967 You request to be advised as to whether the State Highway Department is liable for any damages by reason of the facts set out in your memorandum. As I understand, the property owner of parcel 4 held a driveway permit from January, 1961, forward, and that permit conformed to the State Highway Department Rules and Regulations. However, the right-of-way adjacent to this parcel of property was expanded so that, as ultimately fixed, the property owner has a pump island located within 13 feet of the right-of-way line. Regulations for driveway permits require that there be no pump island closer than 15 feet to the right-of-way line. The question which you have proposed is whether the State Highway Department is obligated to pay the moving expenses of $750 for moving the pump island so as to conform to State Highway Department right-of-way regulations. As I understand, the problem is further complicated by the fact that the property owner in 1961 was granted a driveway permit on the basis of proposed plans. As finally developed, these plans require 2 feet more right-of-way than was originally anticipated. Also my information reveals that a condemnation case is presently pending against this parcel of real estate to acquire some of the additional right-of-way. I very frankly am somewhat confused as to how the property owner was granted a right-of-way permit prior to completion of the construction of the highway. However, I do not see how the property owner has acquired any rights in the original permit which would be the subject of compensation in the event of revocation. In this connection, I call to your attention Section I - 5 of Article I of "Rules and Regulations for the Control and Protection of the State Highway Rights of Way" as published by State Highway Department of Georgia. This section provides as follows: "Any permit granted by the State Highway Department according to these Rules and Regulations shall be revocable at the pleasure of said Department. In the event that any facilities, after construction, become dangerous, unsafe or a 159 nuisance to the traveling public using the highways, or in the event that such facilities should create any unreasonable interference with the proper use of the highways by the traveling public, or in case it becomes necessary to use all the right-of~way to widen the existing roadway or to construct service roads or to make any other revisions in location, alignment or grade of the roadway, making the approved entrance plan impractical, hazardous or otherwise objectionable, the permit for same may be revoked. Provided, however, that in the event the right to revoke said privilege as herein provided is exercised, the Applicant will be given thirty (30) days' written notice prior to such revocation." (Emphasis Added) From that portion of the Rules and Regulations which are emphasized above, it would appear to me that under the facts which have been explained to me, the original permit issued to the property owner of parcel 4 is revocable. However, this conclusion does not answer your question completely. In my judgment in the condemnation case which we have pending, the property owner may show any consequential damages which naturally and proximately arise because of the taking. Therefore, it is my conclusion that the property owner is entitled to compensation because of the consequential damages which may arise because of the fact that he will not be permitted a new permit without the relocation of his pump island. The measure of damages in such a case is dependent upon the circumstances of the case, and of course, ultimate damage is dependent upon the existence or nonexistence of consequential benefits. In the usual case the property owner is generally compensable for depreciation in market value. In this case this may or may not be equal to the cost of removal and relocation of the pump island. If, however, the condemnation case against parcel 4 has been terminated by a jury verdict and judgment of the court entered thereon, then, in my judgment, the question of relocating the pump island is moot as the property owner had the opportunity to present such an issue and the award received by him must be deemed to have included this item. Of course, if the original permit granted to the property owner is not revoked or if the State Highway Department has not refused or 160 does not intend to refuse the issuance of a new permit, then I cannot see how the issue of consequential damages occasioned by the inability to obtain a driveway permit is present in this case. Hence, your question must ultimately be determined by the action of the Permit Department of the State Highway Department of Georgia in the revocation of the original permit or the refusal to issue a new permit. OPINION 67-127 (Unofficial) April 11, 1967 This will acknowledge and thank you for your memorandum in which you request to be advised whether a certain sign and light post located on parcel 4 are trade fixtures, and if so, should the State Highway Department pay the owner (American Oil Company) for removal. A fixture is personal property which has been attached to and affixed to real estate under circumstances which make the personalty part of the realty. Hence, when personalty is so affixed, it becomes a part and parcel of the real estate to which it is affixed. A trade fixture is personalty which has been affixed to and becomes a part of the real estate to which it has been affixed but which is recognized according to the custom under which it is affixed to be removable by the party which attached it to the real estate. This is to say, the principle of law that trade fixtures are removable has application only in cases of landlord and tenant or between the parties which originally allowed the trade fixture installation. However, the trade fixture principle has no application between a grantor and grantee in the absence of an agreement by the grantor and grantee at the time of sale of the real estate that trade fixtures may be removed. This principle has been recognized in the case of Consolidated Warehouse Company v. Smith, 55 Ga. App. 216, 218 (1937) where the court held: " 'The rule in reference to trade fixtures is applicable in cases of landlord and tenant, or where the occupant is in for a limited time; but it generally has no application whatever between a grantor and grantee . . . The owner of a place of trade is generally not permitted to remove trade fixtures adapted to the purposes for which the building was 161 constructed, in the absence of an agreement to that effect, entered into at the time of the sale. In the absence of such an agreement, the fixtures will pass under the instrument which conveys title to the realty. The right to remove annexed articles as personalty may be reserved in the instrument conveying title to the realty, or by an agreement extrinsic and collateral.' See also Pendley Brick Company v. Hardwick, 6 Ga. App. 114 (64 S.E. 664); Brigham v. Overstreet, 128 Ga. 447,450 (57 S.E. 484, 10 L.R.A. (N.S. 452, II Ann. Cas. 75)." In my judgment, State Highway Department, being a condemning authority, stands in the position of a grantee and the principle of law applicable to trade fixtures has no bearing on the rights of the Condemnor. If fixtures exist on property which is being condemned at the time of the condemnation and the condemnation describes the property condemned sufficient to include the fixtures, upon a judgment of condemnation the fixtures become property of the State of Georgia. It is insignificant and immaterial in this event that the fixtures may have been trade fixtures. Whether a certain object of personalty has become so affixed to realty as to become a "fixture" or a "trade fixture" is a question which depends upon the circumstances of each particular case. Some of the circumstances which are material to such a question are as follows: I. Has the personalty been permanently affixed to the realty? 2. Can the personalty be removed and severed from the realty without damage to the realty? 3. Did the owner of the personalty have any interest in the realty at the time the personalty was so affixed to the realty? 4. Was the personalty intended by the owner to be permanently affixed and become a part of the realty? 5. What was the legal relationship of the owner of the personalty to the owner of the realty at the time the personalty was affixed to the realty? Not knowing the circumstances of the case which you have presented in your memorandum of March 27, 1967, I am not in a position to determine if the sign and light post which you refer to are fixtures. Further, the question of whether certain personalty has 162 become a fixture is one which must ultimately be determined by a jury. Therefore, I cannot state to you categorically that certain items are or are not fixtures. If certain items are determined not to be fixtures, then the question still remains as to whether or not the State Highway Department of Georgia may compensate for the removal of such items under applicable law. Again, even if certain items of personalty are deemed not to be fixtures, the question of whether or not the removal of such items are compensable would depend upon the circumstances of each case. It is realized that this area presents many and varied complex legal problems, some of which may be determined ultimately only by the decision of a jury. As a practical approach, you may wish to consider all items of personalty which are affixed to realty that have been condemned as fixtures, but in cases in which no compensation has been made for the personalty, allow the owner to remove them at his own expense. OPINION 67-128 (Unofficial) April II, 1967 You state that you have been engaged in a "running battle" with the Harris County Tax Commissioner over the amount of ad valorem taxes on your cottage, which is constructed on leased land. In this connection, I would like to refer you to the following Code sections which provide in part as follows: "The board of county tax assessors in each county may meet at any time to receive and inspect the tax returns to be laid before them by the tax receiver as hereinbefore provided. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns. 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 163 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 . . . ." Ga. Code Ann. 92-6911. "If any taxpayer is dissatisfied with the action of the board, he may within lO days from the giving of said notice in case of residents, and within 20 days in case of nonresidents of the county, give notice to the board that he demands an arbitration, giving at the same time the name of his arbitrator; the board shall name its arbitrator within three days thereafter and these two shall select a third, a .majority of whom shall fix the assessments and the property on which said taxpayer shall pay taxes, and said decision shall be final, except as far as the same may be affected by the findings and orders of the State Revenue Commission as hereinafter provided. . . ." Ga. Code Ann. 92-6912. As provided in the above Code sections, a taxpayer may refer the question of fair market value of the property to arbitration, if he is dissatisfied with the action of the Board of Tax Assessors. This, of course, must be done by residents within lO days from the date notice was given by the Assessors. OPINION 67-129 April 12, 1967 You asked for my official opmton regarding the use or reinvestment of common stock received as an unrestricted bequest to North Georgia College. Specifically, you have asked if the Regents may continue to hold the stock for the purpose of establishing therewith an endowment fund to be used for scholarships at the college. Under the rationale of Vii/yard v. Regents, 204 Ga. 517 (1948) and State v. Regents, 179 Ga. 210 (1934), it is necessary to look for limitations rather than authority for the Regents to do specific acts, since the Regents is limited only by its proper discretion and by the Constitution and law of this State. Having found no constitutional or statutory provisions relating to unrestricted bequests of stock, I am of the opinion that the Regents may keep or dispose of such stock as the Board of Regents deems to be in its best interests. 164 OPINION 67-130 (Unofficial) Aprill2, 1967 You ask if an automobile owned by your husband is subject to ad valorem taxation in Georgia under the following facts: "I am presently residing in Georgia although my home state and that of my husband is in Texas. My husband is presently serving in the Armed Forces of the United States in Southeast Asia. I am here in Georgia because my family is here and this was the most logical place for me to stay while my husband is serving his country abroad. "In January, I went to obtain a Georgia license plate for my husband's car. On presenting my application, I was informed I have to pay an ad valorem tax. I did so but with a feeling that this was not right." Under the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, personal property owned by a person on active duty in the Armed Forces is subject to ad valorem taxation only in the State of his domicile, provided such property is not used in or arises from a trade or business. 50 App. U .S.C.A. 574 provides in part as follows: " . . . Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders: ... " Assuming that your husband is, in fact, domiciled in Texas and absent therefrom solely by virtue of complying with military orders, it appears that the automobile owned by your husband is not subject to ad valorem taxation in Georgia. You also inquire as to the proper procedure to follow in applying for a refund of ad valorem taxes. In this connection I would like to refer you to the following Code Sections: "In all cases where a person has been overtaxed or claims for any reason that taxes should be remitted or refunded, the 165 ordinary or other county authority empowered to levy taxes may hear and determine such application to the extent of the interest of the county therein." Ga. Code Ann. 92-3812. "In all cases where the county commissioners or other county authorities, pursuant to the provisions of Section 92-3812, have authorized the tax collector or tax commissioner of the county to credit or refund any overpayment of property tax in cases where the taxpayer has been overtaxed or has claimed that the tax should be credited or refunded, such authorization to the tax collector or tax commissioner of the county shall be authority to credit or refund the proportionate amount of the State and county school tax represented in such overpayment, and, in the case of refunds, he shall deduct such amounts from his next distribution to the State and county school boards, respectively." Ga. Code Ann. 92-6502. OPINION 67-131 (Unofficial) April 12, 1967 You ask the following questions: "May a serviceman claim a homestead exemption on his residence in the State of Georgia while he is on active duty without the State of Georgia? For the purposes of this inquiry, assume that the serviceman does not own a residence or claim a homestead in any other state, and that he considers Georgia his permanent residence (i.e., he votes there and intends to return there). "If the serviceman may claim the exemptions under the above facts, is this determination changed if the serviceman rents his Georgia property out while he is stationed elsewhere?" Ga. Code Ann. 92-233 provides in part as follows: "(k) The permanent place of residence of a person in the military, naval, marine, or other armed forces of the United States, and said residence shall be construed to be actually occupied as the place of abode of such person, where the family of such person resides thereat, or where the "family because of such service is forced to live elsewhere. "Absence of a person from his residence because of duty in 166 the armed forces of the United States will not be considered as a waiver upon the part of such person in applying for a homestead exemption. Any member of his immediate family or a friend may notify the tax receiver or the tax commissioner of his absence. This notice will require the tax receiver or tax commissioner to grant the homestead exemption to the person so absent in the armed forces of the United States." In view of this statute, it is my opinion that a member of the military service is entitled to the homestead exemption in each of the above factual situations, assuming, of course, that he is otherwise qualified. OPINION 67-132 (Unofficial) April 12, 1967 You wrote concerning a request for information as to the ad valorem taxation of special franchises in Georgia. You have also asked for information concerning the apportionment of ad valorem taxes on personal property that is used in commerce between counties and states. This office, at the request of the officials in Muscogee County, gave an official opinion to the Department of Revenue concerning the taxation of special franchises. A copy of that opinion is enclosed and may be found in the bound volume, Op. Att'y Gen. (1962) p. 511. The tax situs of commercial personal property was discussed in an opinion to the County Attorney, Muscogee County. A copy of the opinion is enclosed. A copy of that opinion may be found in Op. Att'y Gen. (1962), p. 480. With respect to the valuation of special franchises, unique problems are involved because the Public Service Commission will not permit a certificate of public convenience to be transferred and in the a~sence of some right to transfer such a certificate it might well have limited sales value and, therefore, limited tax value. Each particular case would, of course, depend upon the circumstances. OPINION 67-133 (Unofficial) 167 April12,1967 You have inquired as to whether or not Section 2 of Act No. 159 (H. B. No. 819) enacted at the 1967 Session of the General Assembly, which Section provides that the Sheriff of Gilmer County shall be entitled to the fee for turning the key on receiving prisoners in the County Jail, is unconstitutional as being in conflict with ~he general law (Ga. Laws 1964, p. 310; Ga. Code Ann. 242826) abolishing the fee system of compensating sheriffs and placing sheriffs on annual salaries. As you know, Article I, Section IV, Paragraph I (Code Ann. 2401) of the Georgia Constitution declares that no special law shall be enacted in any case for which provision has been made by an existing general law. In 1964, the General Assembly abolished the fee system of compensating the sheriffs of the various counties in this State and the fee system supplemented by a salary (Ga. Laws 1964, p. 310; Ga. Code Ann. 24-2826). That act, after abolishing the fee system, provided that " ... thereafter no sheriff shall receive as any portion of his compensation for his services as such any fees, fines, forfeitures, costs, commissions, emoluments, or perquisites of any nature whatsoever." That act provided further that: "After the effective date of this section the sheriffs shall receive no compensation except that compensation which shall be in the nature of an annual salary to be fixed by law." The effective date of the section was March I, 1966. Prior to March l, 1966, the fees of the sheriffs were set forth in what was Ga. Code Ann. 24-2823. That schedule of fees included a fee "For turning key on receiving prisoners in jail." ' Prior to the effective date, local legislation was enacted placing the Sheriff of Gilmer County on an annual salary and fixing the amount thereof. Ga. Laws 1966, p. 2480. At the 1967 Session of the General Assembly, local legislation was enacted so as to provide, in Section 2, that the Sheriff of Gilmer County, "shall be entitled to receive and retain the fee for turning the key on receiving prisoners in the County Jail." Act No. 159, 1967 (H. B. No. 819). Act No. 159 purports to be an amendment to the 1966 act placing the Sheriff of Gilmer County on a salary. 168 In the case of Chappell v. Kilgore, 196 Ga. 591 (1943), a case decided when the sheriffs were on the fee system, the Supreme Court of Georgia held that an act purporting to fix a salary for the Sheriff of Carroll County, in addition to the fees and compensation allowed under the general law, was invalid under Article I, Section IV, Paragraph I of the State Constitution, in that such a local act was a special law for which provision had been made by existing general law. One of the existing general laws to which the court in that case referred was former Code Section 24-2823. See also Atkinson v. Bailey, 135 Ga. 336 (1910) and Christian v. Moreland, 203 Ga. 20 (1947) to the same effect. It stands to reason that if a local law providing a salary for the sheriff was unconstitutional when the general law provided for the fee system, that a local law providing for a fee for turning the key on receiving prisoners in the county jail is unconstitutional as a special law for which provision has been made by an existing general law (Canst., Art. I, Sect. IV, Par. I) where the generallaw provides that the fee system is abolished, that no sheriff shall receive as compensation any fees, and that the sheriff shall receive no compensation except an annual salary. OPINION 67-134 April 13, 1967 You requested an official opinion as to (I) whether or not the Director and Deputy Director of the Department of Public Safety may continue to receive $365.00 per annum as provided for in Ga. Laws 1956, p. 687; and, (2) whether or not the Deputy Director may receive longevity pay for years of service as provided for in Ga. Laws 1960, p. 132. With respect to the former question, Ga. Laws 1956, p. 687 was repealed in its entirety by Ga. Laws 1958, pp. 296, 301, but the provision providing for an increase of $365.00 per annum for the Director and Deputy Director was re-enacted in Ga. Laws 1958, p. 296 and is more recently reflected in Ga. Laws 1960, pp. 132, 135-136. Ga. Laws 1967, p. 98 (Act No. 57), struck the provision relating to the Director receiving no other compensation or allowances as was provided in Act No. I of the 1967 General Assembly, approved January 23, 1967, so that it would now appear that the Director 169 and Deputy Director may continue to receive the $365.00 per annum increase as set out in Ga. Laws 1958, p. 296, as amended. With respect to the latter question, Ga. Laws 1960, p. 132 is the latest expression of the Legislature on the subject. The aforementioned law provided for certain salary increases based on longevity. Although the increases are in reference to the "Battalion", the Act also provides that the increases shall apply to the Headquarters Staff, except for the Director. This Act states that the Headquarters Staff is composed of. .. among others...the Deputy Director; therefore, it follows that the Deputy Director is entitled to the same longevity increases as are members of the Battalion, to wit, five percent (5%) annually for the first five (5) years of service, three percent (3%) annually for the next five (5) years of service, two percent (2%) annually for the next ten (I 0) years of service, and one percent (I%) annually for each year of service thereafter. OPINION 67-135 Aprill3, 1967 You refer to the fact that in taking the National Teacher Examination (which is used by the State Department of Education as a basis for the issuance of scholarships, grants-in-aid for inservice study, and the issuance of six- and seven-year teacher certificates), various teachers of Georgia and Florida are suspected of having cheated. You ask whether Georgia has any laws which would protect the State from dishonest teachers (i.e. those who have cheated) using their false and fradulently-obtained examination scores for the purpose of obtaining such scholarships, grants or higher paying teacher certificates. My opinion and the reasons therefor are as follows: OPINION While I have been unable to locate any decision of this State dealing with the novel question you present (i.e. cheating on an examination and then using the false and wrongfully obtained score to obtain monetary benefits from the State), I am of the opinion that an individual so doing might well be vulnerable to criminal prosecution under the various State statutes hereinafter set forth. DISCUSSION There are various criminal statutes of this State which are designed to prevent an individual from obtaining public property or 170 money by fraud or deceit. While l can not say that I am aware of an instance where any of such statutes have been applied to the particular facts set forth in your letter, I know of no reason why they could not be so applied. The statutes (or the relevant portions thereof) of which I speak are as follows: l. Ga. Code Ann. 26-4201 This code section provides in part: "Any two or more persons who shall conspire or agree to defraud, cheat, or illegally obtain from the State...or from any public officer of this State. . .any property belonging to the State. . .or under the control or possession of said officers as such shall be punished by imprisonment and labor in the penitentiary for not less than two nor more than 10 years." As used in this code section, the word "property" has been construed as inclusive of money, see Clinkscales v. The State, 102 Ga. App. 670 (1960). Assuming that two or more persons are shown to have cooperated in their cheating activities, and, assuming further that it can also be shown, by circumstantial evidence or otherwise, that their effort was for the purpose of obtaining such a fiscal benefit from the State, I see no reason why persons engaged in organized cheating in order to obtain scholarships, higher teaching certificates, etc., could not be convicted under this statute. 2. Ga. Code Ann. 26-5015 "Whoever, in any matter within the jurisdiction of any department or agency of the State of Georgia knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device, a material fact, or makes any false, fictitious or fraudulent. . .representations. . .with intent to defraud the State of Georgia, shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one year nor more than 20 years." 3. Ga. Code Ann. 26-2901 "Any person who shall fraudulently, wrongfully or illegally receive any money or personal property belonging to the State, and shall refuse to pay over said money...upon a demand of the same. . .shall be punished by confinement and labor in the penitentiary not less than one nor more than two years." 171 4. Ga. Code Ann. 26-7410 "Any person using any deceitful means or artful practice, other than those which are mentioned in Part XII of this Title, by which an individual, or a firm, . . .or the public is defrauded and cheated, shall be punished as for a misdemeanor." It goes without saying, of course, that whether any or all of these statutes would in fact be applicable to any particular teacher who has cheated on the National Teacher Examination would have to be determined from a detailed examination of the precise facts involved and evidence available. It must be understood, in other words, that in view of the general and somewhat hypothetical outline of facts presented in your letter, this reply is intended only as information as to which criminal statutes might conceivably be involved and should not be construed as an unqualified conclusion that the teachers you are concerned with have violated all or any of the same. OPINION 67-136 (Unofficial) April 13, 1967 You requested an opinion concerning whether the destruction of certain county records might be authorized by County Home Rule legislation. By Ga. Laws 1965, pp. 752, 753, the General Assembly proposed an amendment to Article 15 of the Georgia Constitution, said amendment being ratified in the November, 1966, election. This County Home Rule amendment provided in Article 15, Section 2A, Paragraph I(a), that "the governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions or regulations relating to its property, affairs and local government for which no provision has been made by general law and which is not inconsistent with this Constitution, or any local Iaw applicable thereto.'' Therefore, any legislation by which a county may provide for the destruction of county records pursuant to the above constitutional provision must be based on its relating to matters " . . .for which no provision has been made by general law and which is not inconsistent with this Constitution, or any local law applicable thereto." Ibid. 172 Your attention is called to Ga. Code Ann. 23-908 which provides in reference to the duties and authorities of Boards of County Commissioners of Roads and Revenues as follows: The board shall keep full and correct minutes of all its official acts and doings in a minute book kept for such purpose, a book of receipts and disbursements, a general ledger, a warrant book, a book containing a complete list of all the county property, real and personal, and shall make a record therein of all sales or other disposition of the same; also a road register in which shall be kept a record of all public roads and also of all private roads granted or ordered kept open by the board, particularly describing such roads, and shall make a record of all new roads which shall be hereafter granted, or ordered kept open in accordance with law. The board shall also keep on file all paid warrants and vouchers and other papers necessary to show a complete record of all transactions of the county. The above provision is a general law applicable to all boards of county commissioners and it enumerates the records which must be maintained and kept by such boards. There is no provision in said section as to a time limit after which such records need no longer be maintained. Therefore, it is my opinion that since the above provision is a general law applicable to the records to be maintained by all county boards of commissioners that same prevents any board from enacting, pursuant to the County Home Rule amendment, legislation providing for the destruction of such county records. OPINION 67-137 April 14, 1967 You ask for opinions at the earliest possible date regarding the following questions: 1. May a county board of education rescind its action in electing a principal at a regular board meeting prior to the time when the board of education has tendered a contract to and it has been accepted by the said principal? 2. When a county board of education has, in regular session, voted to elect a principal for employment as such for the 173 ensuing school year but has not tendered a written contract for execution as required by Ga. Code Ann. 32-607, will a letter written by said principal accepting the action of the board become a binding contract upon the board? 3. If a called meeting of a board of education is held "for the purpose of considering the employment of personnel and discussing any matter pertaining to the building," can action be legally taken on a motion to grant a hearing to a teacher or principal requesting such a hearing on a decision of the board of education not to renew a contract? My opinion and the reasons therefor are as follows: OPINION In my opinion, question one must be answered in the affirmative and question two in the negative. Question three involves a matter which addresses itself to the sole discretion of the school board, thus requiring an affirmative answer as to your precise question of whether such board "could" (i.e. at its option) grant a hearing on the matter. DISCUSSION I. Under the laws of the State of Georgia, a county board of education functions in two distinct capacities. It exercises the continuing administrative role of managing, operating and controlling the county school system. Article VI I I, Section V, Paragraph I of the Constitution of the State of Georgia (Ga. Code Ann. 2-680 I). It also functions as a judicial or quasi-judicial body for hearing and determining matters of local controversy in reference to the construction or administration of school Ia w. Ga. Code Ann. 32-910. While it is the rule in Georgia that a school board, when sitting in its judicial capacity, is without power to alter or reverse its }ina! judicial decision, Murdock v. Peters, 219 Ga. 756(3), 761-62 (1964), this rule is obviously inapplicable to the power of a county school board (or any other administrative body), in the exercise of its continuing administrative functions, to change, alter or revoke prior administrative policies, regulations or decisions. 2 Am. Jur. 2d Admin. Law 522, p. 331-32; see also Vitareffi v. Seaton, 359 U. S. 535 ( 1959) (wherein a continuing power of summary discharge without cause was recognized respecting certain non-civil service federal employees). Were the 174 contrary true and a school board unable to mend or revoke an existing policy or decision regarding school operations, it could not possibly carry out its constitutional duty of "continuing" control and administration of the school system, a duty which necessarily requires modification of existing school policies and regulations from time to time in order to meet new conditions and situations. Assuming that no legal questions as to certification or licensing are present, the decision of a local school board as to which teachers or principals it will employ would seem to me to be so clearly an administrative matter as to require no further amplification. The matter is one which by law addresses itself to the discretion of the county board of education, Ga. Code Ann. 32-609, and in my opinion such board may modify or alter its decision at will up until the time a binding contract is entered into with the teacher or principal involved. The right of a properly qualified individual to be employed as a teacher or principal in a given county school system, as well as his rights as an employee of such system, are wholly dependent upon the existence of a valid employment contract between the teacher and the county school board. ln the absence of a valid employment contract no such rights exist. Ga. Code Ann. 32-607 requires that employment contracts of teachers, principals and other certificated professional personnel be in writing and signed both by the employee on his own behalf and by the local superintendent on behalf of the board of education. In cases holding that an unwritten contract is no contract at all, and that a teacher is without any employment rights whatsoever in such situations (even though he may actually have rendered services to the county school system as a teacher), see Green v. Snellville Consolidated School District, 169 Ga. 667, 668 (1930); Dodd v. Board of Education of Forsyth County, 46 Ga. App. 235 (1933); see also Op. Att'y Gen. (1954-56) p. 286, it would appear that the Georgia courts construe these statutory requirements (i.e. in writing and signed by both parties) as absolutely necessary to the existence of a valid contract. Thus the mere letter of an individual accepting the initial decision (later revoked) of a school board to employ him during the coming school year, unless it is a letter (I) susceptible of being itself construed to be an enzployment contract, and (2) signed both by such individual, and also by the superintendent on behalf of the board prior to the time the board reversed its initial decision (and your letter certainly does not indicate this to be the case), would not in my opinion be 175 sufficient to meet the requirements of Ga. Code Ann. 32-607. Consequently, I do not think the board could be held to be contractually bound under any theory of a written contract having resulted from the initial board decision being construed as an offer with the letter being deemed an acceptance of the same in writing. 3. As already pointed out, the matter of employing a qualified individual as a teacher or principal in a county school system is a matter which under Ga. Code Ann., 32-609 addresses itself exclusively to the county board of education. This being so, I am of the opinion that the decision as to whether or not a hearing shall be had on the matter is also a question which addresses itself exclusively to the discretion of the county school board. In this opinion I might point out that I do not overlook the fact that existing Regulations of the State Board of Education would appear on their face to provide quite broadly for motions for reconsideration, hearing thereon and appeals thereof as to all decisions of a local school board, including those which are of an administrative nature. But these Regulations are expressly designed to implement Section 32-910 of the Annotated Code of Georgia and this code section vests the State Board of Education with appellate jurisdiction only over those decisions which a local board makes in its judicial or quasi-judicial capacity. Concerning hearings before the local board, this code section does provide for the hearing of any matter of local "controversy" in reference to either the construction or administration of school law. I would admit that it would be entirely possible to read the term "controversy" as meaning any time anyone disagrees with any action of a local board. Under this theory, of course, even such purely housekeeping matters as fixing the date upon which a county board meeting is to be held would be a fit matter for a hearing and appeal to the State Board of Education. I cannot conceive that either the statute or the regulation of the State Board was ever intended to achieve this result. To my way of thinking, the word "controversy" is employed in the somewhat narrower sense of meaning a non-frivolous issue as to whether the board action in question was contrary to law. So construed the statute would not require the hearing and appellate procedures of the statute and regulations to be applied in those relatively small number of matters where the county school board's discretion is absolute and not even subject to the usual requirement that it be based upon 176 some reasonable ground and not constitute an abuse of discretion. In my opinion, the decision of a county board of education as to whether it will employ an individual as a teacher or principal (assuming the individual meets all State imposed qualifications for the position) is such a matter where its discretion is absolute. Should an appeal to the State Board be taken from such a decision, a refusal to entertain the appeal on the ground that the State Board is without jurisdiction to review the same would seem to be a certainty. This has, quite correctly I think, been the conclusion of the State Board of Education in the past. See Maxey v. DeKalb County BoardofEducation, 220 Ga. 158,159 (1964). To require a local school board to grant a formal hearing, transcribe evidence and comply with the regulations' appellate procedures for this inevitable result would obviously be a waste of time, effort and money for all concerned. Moreover, it is axiomatic that the law does not ordinarily require the doing of useless things. For this reason, I conclude that the county school board is not required to grant a hearing on such matters, although it could lawfully do so should it so desire. ln closing l feel l should point out that the foregoing opinion is based upon the genera/law of this State, which does not provide for teacher tenure. There are, as you know, a few school systems which do have tenure systems in force by virtue of local law. Quite obviously the answers to the questions you have posed would be considerably different in a county having such a local tenure law. OPINION 67-138 April 18, 1967 You requested an official opinion concerning whether or not you may issue corporate name certificates with the words Limited or Ltd. as the corporate indicating suffix or prefix rather than the words Corporation (Corp.), Incorporated (Inc.), or Company (Co.). In Ga. Code Ann. 22-1802, as amended, provision is made as to the contents of an application for a corporate charter. Subsection (a) of that section sets forth the requirements as to the name of the proposed corporation as follows: The name of the proposed corporation, which name shall include the word "Company" or "Corporation," or have such 177 word or words, abbreviation, suffix or prefix therein or thereto as will clearly indicate that it is a corporation as distinguished from a natural person, firm or partnership.... The above-stated code section explicitly states that the words "Company" or "Corporation" or other words which " . . .will clearly indicate that it is a corporation . . . " are specific requirements of the Georgia Corporation Law and, in my opinion, was intended to inform and advise the public as to the nature of the legal entity. Since the words "Limited" or "Ltd." can be used to indicate entities other than corporations, the use of such prefixes would not so advise the public of the nature of the entity and thus would not insure the results intended by the General Assembly by the above-stated code section. You are of course familiar with "limited partnerships". In 40 Am. Jur., Partnership, Section 518, the following discussion is found concerning a "partnership association": A partnership association represents a still further departure from the common-law liability of the member of a general partnership; it is a type of artificial person standing halfway between a limited partnership and a corporation. In this type of association, no general partners are required, nor is any restriction put on the firm name or title, except that the word "limited" must be the concluding word. (Footnotes omitted) word. (Footnotes omitted) Thus, it appears that there are certain associations or organizations which have limited liability and which use the word "limited" but which are not corporations. Therefore, it is my opinion that you should not issue corporate name certificates with the word "Limited" or "Ltd." as the suffix or prefix rather than the words Corporation (Corp.), Incorporated (Inc.) or Company (Co.) since the requirements as set forth in Ga. Code Ann. 22-1802(a) provide that the name to be included be such " . . . as will clearly indicate that it is a corporation as distinguished from a natural person, firm or partnership. OPINION 67-139 April 19, 1967 You requested my opinion as to (I) whether the Act of 1959 (Ga. Laws 1959, pp. 135-36; Ga. Code Ann. 73-224), as amended by 178 the Act of 1960 (Ga. Laws 1960, pp. 826-27), regulating signs advertising the retail price of motor fuel, requires that the Georgia sales tax be included in the advertised price of such fuel, and (2) whether you may by regulation require retail dealers of motor fuel to post on each pump dispensing motor fuel a statement that the Georgia sales tax is in addition to the advertised price. l n construing a statute, one must keep in mind the cardinal rule of statutory construction, which is that a statute must be construed so as to effectuate the legislative intent. Stroud v. Doolittle, 213 Ga. 32 (1957). To ascertain this intent, regard must be had for the state of the law at the time the statute was enacted, the evil with which it deals, and the remedy it devises for such evil. Moore v. Baldwin County, 209 Ga. 541 (1953). With these principles in mind, it should be noted that, prior to enactment of the Act of 1959, Georgia did not undertake to regulate advertisement of retail prices of motor fuel. As a consequence, various advertising practices designed to confuse and mislead the consuming public developed in the industry, which, incidentally, is a highly competitive industry. One of the chief means of deceiving the public was to place large eye-catching signs along the highway advertising the per-gallon price of motor fuel as a specified sum plus taxes, the specified sum being stated in large, easily visible numerals while the words "plus taxes" were stated in small, almost invisible letters. After being drawn into a station by such signs, the motorist then discovered that there was no difference in the price shown on the pump and the price at which competing dealers were selling the same grade of fuel. Confronted with this state of affairs, the legislature adopted the Act of 1959 for the purpose of prohibiting such deceptive practices. Among other things, it provided that the per-gallon selling price of motor fuel should be stated as a single sum, "including all taxes of any and every kind, except Georgia Sales Tax." ln 1960, Section 1 was revised so as to permit a dealer, if he should desire, to use advertising signs which contain "a separate listing of the price and a separate listing of each tax thereon" as long as the signs also contain "a total of such price and taxes which shall be at least as large as the listing of the price or any tax thereon." Based upon the purpose of the 1959 Act, it is my opinion that the 179 amendatory Act of 1960 was, in part, designed to sanction the practice engaged in by retail dealers of motor fuel, in advertising the price of motor fuel, of separating from the rest of the selling price amounts equivalent to the federal gasoline tax (IRC of 1954, 4081-84) and the Georgia motor-fuel tax (Ga. Code Ann. Ch. 92-14). There was no intent to affect the manner of handling sales tax collections, although, taking the amendatory Act separately and giving it a literal construction, it might seem that there was. This conclusion seems proper in light of those rules of statutory construction which provide: (1) That the spirit or intention of the law shall prevail over the letter thereof, New Amsterdam Cas. Co. v. Freeland, 216 Ga. 491 (1960); (2) that one statute should not be construed to conflict with another, Wright v. State, 166 Ga. I ( 19 28); and (3) that statu tory cons"truction resulting in unreasonableness and absurd consequences should be avoided. Drake v. Thyer Mfg. Corp., 105 Ga. App. 20 (1961). To hold that the Amendment requires inclusion of the Georgia sales tax in the price of motor fuel would be absurd and would place the amendment in conflict with the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, pp. 360-87), which imposes a tax measured by sales price. The Georgia sales tax is something that is collected not as a part of but in addition to the selling price of motor fuel. On the other hand, the federal gasoline tax and the Georgia motor fuel tax are imposed before the retail transaction occurs and, strictly speaking, lose their identity as taxes by the time the retailer acquires title to the fuel. See Undercojler v. Capital Automobile Company, Ill Ga. App. 709 (1965). However, because each of these taxes is a specific tax, i.e., the amount of tax per gallon remains the same regardless of the selling price or value of a gallon, it is not uncommon for the petroleum industry to loosely refer to these taxes as if they were something separate and distinct from the retailer's selling price. It is only in this loose sense that the legislature speaks of a "separate listing of. . . price and a separate listing of each tax thereon . . . ." Unlike the federal gasoline tax and the Georgia motor fuel tax, the Georgia sales tax varies with selling price and cannot be ascertained, in absolute terms, until selling price is established. Because of the keen competition among retail motor fuel dealers, which has resulted in deceptive advertising practices in the past, I am of the opinion that a regulation promulgated by you requiring 180 that a statement be posted on each pump dispensing motor fuel that the Georgia sales tax is in addition to the price shown on the pump would be reasonable, would be in furtherance of the enforcement of the Georgia Retailers' and Consumers' Sales and Use Tax Act and would not be inconsistent with such Act or the laws or Constitution of the United States and the State of Georgia. On the basis of what has been said, the first question is answered in the negative; the second is answered in the affirmative. However, l wish to point out that the answer to the first question does not preclude a total per-gallon charge, including the Georgia sales tax, if correctly computed, being shown on the pump. OPINION 67-140 (Unofficial) April 20, 1967 You ask if the City of Winterville can collect a specific or flat rate property tax on motor vehicles for 1967. In this connection you state that the City collected a specific tax on motor vehicles in 1966 and at the same time collected an ad valorem tax on all other personal property and real property. The Charter of the City of Winterville provides for the ad valorem taxation of all taxable property. Ga. Laws 1955, pages 2794, 2802. An Act enacted by the Legislature in 1966 prescribes the procedures for collection of ad valorem taxes on motor vehicles. Ga. Laws 1966, page 517. This Act provides, in part, as follows: " . . . The procedures prescribed by this Chapter for returning motor vehicles for taxation, determining the applicable rates therefor, and collecting the ad valorem tax imposed thereon shall be exclusive." (Ga. Code Ann., 92-150 I). "The tax collector or tax commissioner receiving the return shall collect all ad valorem taxes imposed on such vehicle, irrespective of the taxing authority levying such taxes; and no other official shall be authorized to collect such taxes." (Ga. Code Ann., 92-1509). "Ad valorem taxes imposed on motor vehicles by a taxing authority shall be at the mill rate assessed by such taxing authority on tangible property for the previous calendar year." (Ga. Code Ann., 92-1511 ). 181 In view of the above Act prescribing the exclusive procedures for collecting ad valorem taxes on motor vehicles at the mill rate assessed by the taxing authority on "tangible property" for the previous calendar year, it is my opinion that Winterville may not collect a specific or flat rate property tax on automobiles for 1967. Insofar as a city requiring a registration fee for the registration of motor vehicles, I would like to refer you to Dubose vs. City of Lumpkin, 113 Ga. App. 297 (1966). This, of course, is not a revenue producing measure. You also inquire about the collection of 1967 ad valorem taxes on motor vehicles for Winterville in view of the fact that the City collected no such taxes in 1966 and the Tax Collector of Clarke County has not collected such taxes this year. I suggest that you discuss this matter with the County Attorney for Clarke County since there is an apparent controversy upon an accrued state of facts and any opinion rendered herein would not be binding upon anyone. The next question you ask is "whether Section 92-1511 of this law means that the mill rate on tangible property assessed by the City for 1967, which obviously does not include motor vehicles for that year, then becomes the mill rate for motor vehicles for 1968 without some special taxing ordinance for motor vehicles". The answer to this question is in the affirmative. OPINION 67-141 (Unofficial) April2l, 1967 We have reviewed the opmwn of the late Attorney General regarding Ga. Code Ann. 89-703 thru 89-706, inclusive (Op. Att'y Gen., 1945-47, pp. 536-539, Oct. 20, 1947). From the enclosed opinion, you will note that the basic provisions of the law in question were enacted in 1912 (Ga. Laws 1912, pp. 109-111). That act contains a proviso indicating that the purpose of the enactment was to provide the General Assembly with information about the fees being received by county officers to enable the General Assembly to enact legislation placing them on salaries. After reviewing the history of the subject code sections, the 182 several court decisions cited in the opinion, and the practice being followed by county officers, the Comptroller General and the General Assembly at the time that opinion was rendered, the Attorney General concluded as follows: "In view of the foregoing decisions of our appellate courts, together with the many rules of statutory construction referred to herein, I am of the very definite opinion that the Act approved August 17, 1912, is no longer the law of this State, and that state and county officials who receive fees and compensation other than salary, are not required to file itemized sworn statements of such fees and compensation quarterly with the Comptroller-General. It would therefore follow that the Comptroller-General likewise is no longer required to have such information available for the General Assembly." We have reviewed the opinion and the acts referred to therein. Although the Attorney General concluded his opinion by saying that if he had misconstrued the intent of the Legislature "It will be an easy matter for the Legislature at its next session to direct such officers to make this information available," no such legislation has been forthcoming. For the reasons expressed in the former opinion, and in view of the construction thereof by the various public officials involved, including members of the General Assembly since 1947, we are of the opinion that Ga. Code Ann. 89-703 thru 89-706, inclusive, are not enforceable today. This is not to say that your grand jury may not be able to obtain the desired information purusant to Ga. Code Ann. 59-309 and 59-310, et seq. OPINION 67-142 (Unofficial) April 2 I, I967 You ask: "May a county regulate weight, length and width of trucks traveling on paved roads which are maintained by the county?". You state in your letter that the trucks in question are those engaged in the construction of l-20. Ga. Code Ann. 68-405(c) states: 183 " ... [f)hat any vehicle, on which State and county ad valorem taxes have been paid, of a contractor who has a contract with the State Highway Department for the construction or maintenance of a road or highway may exceed the weight and length limits provided in this section, when used in connection with such contract, without the necessity of obtaining a special permit herein required." It would thus appear that under the facts of your letter and considering the above Code provision, Morgan County may not regulate the weight, length and width of the trucks engaged in the construction of 1-20. OPINION 67-143 (Unofficial) April24, 1967 Your letter specifically requests to know if you would need to obtain any license or permit in order to sell metal culvert pipe within the State of Georgia. According to my best information no license or permit is required by the State for the mere sale of goods within this State; particularly metal culvert pipe. However, it may be that there are requirements of local counties or municipalities that a business license be acquired before engaging into that activity within the boundaries of their local jurisdiction. I can only suggest that you refer the details and the particular problems of the activities in which you intend to engage to an Attorney who can represent you individually. Enclosed are Volumes I and II of the Standard Specifications of the State Highway Department of Georgia for the Construction of Roads and Bridges within this State, as requested by you. Sections 522 through 536 in Volume I would appear to be the Sections most informative to you. OPINION 67-144 April 25, 1967 You raised a question concerning the permitted scope of practice of an engineer. Specifically, you wish to know whether an engineer may lawfully design and prepare, without the association of an 184 artchitect, the plans and specifications for the construction of a gymnasium by a county school board. As you know, the practice of engineering is defined as: "The art and science by which mechanical properties of matter are made useful to man in structures and machines, and shall include any professional service, such as consultation, investigation, evaluation, planning, designing, or responsible supervision of construction or operation, in connection with any public or private utilities, structures, buildings, machines, equipment, process, works and projects, wherein the public welfare, or the safeguarding of life, health or property is concerned or involved, when such professional service requires the application of civil, electrical, chemical, or mechanical engineering principles and data and training in the application of mathematical and physical sciences." Ga. Laws 1945, pp. 294, 296 (Ga. Code Ann. 84-2103). The practice of architecture is also defined by law, and it is the: "rendering or offering to render service by consultation, preliminary studies, drawings, specifications, supervision, or any other service in connection with the design of any building or addition or structural alteration thereto...". Ga. Laws 1919, p. 128, as amended (Ga. Code Ann. 84-301). The Court of Appeals of Georgia has considered the scope of practice of engineers as it relates to the preparation of plans and specifications for the construction of buildings. In Flatauer Fixture and Sales Corp. v. Garcia and Associates, 99 Ga. App. 685 (1959), the defendant in error had brought suit on open account to collect fees for plans and specifications for a building and for a topographic survey. The plaintiff in error contended that the services were architectural services and that the fees could not be collected because the defendant in error was not registered as an architect. The evidence showed that the defendant in error had surveyed and prepared a topography map of the lot of a prospective customer and then prepared plans and specifications for a building to be placed on the lot for the purpose of selling ice cream and containing the machinery of the plaintiff in error. The Court, in upholding the right to recover the fees, states that: "All of such services are comprehended within those which 185 may be performed by a licensed engineer and land surveyor under Chapter 84-21." Ffatauer Fixture and Sales Corp. v. Garcia and Associates, supra, 686. Additionall, the Court states that: "The services rendered come within the purview of Code [Ann.] Section 84-2103 defining and regulating engineers and land surveyors, and including in the term engineering 'planning, designing, or responsible supervision of construction or operation, in connection with any public or private utilities, structures, buildings, machines, equipment'. . .''. Although the opinion in the Flatauer case quotes only from that Section of the Act which defines the practice of engineering, it is my opinion that the extent to which an engineer may practice should not be determined solely by looking to the provisions defining the practice of engineering. I do not believe that the Legislature intended that engineers should be permitted to plan, design, or supervise the construction of structures and buildings to the same extent that an architect may do so, for another Section of the Act provides that: "Nothing in this Act shall be construed as excluding a qualified registered architect from such engineering practice as may be incident to the practice of his profession; or as excluding a professional engineer registered under the provisions of this Act, from such architectural practice as may be incident to the practice of professional engineering." Ga. Laws 1945, pp. 294, 308 (Ga. Code Ann. 84-2137). The Act regulating the practice of architecture contains a similar Section. Ga. Laws 1919, p. 128, as amended (Ga. Code Ann. 84-321). Based upon my independent examination of the statutes involved, I am reluctant to state that the broad language of the Ffatauer case would necessarily be applicable in future cases in which the services performed might clearly be architectural services, and which may not be clearly incidental to the practice of engineering. It is impossible to determine from the language of the Flatauer case whether the Court held that an engineer could design all types of buildings. It must be borne in mind that the building in the Ffatauer case was primarily industrial and not one to house people, as would be the case with a gymnasium. Frankly, there may be an overlap in the authorized functions of engineers and 186 architects. It may well be that the engineering and architectural communities may wish to approach the General Assembly for a more precise definition of the spheres in which each group is to operate. In the meantime, it is my opinion that the Act authorizes an engineer to engage in such practices as may be classified as the practice of architecture, in addition to the engineering practice, only to the extent that such practice is clearly incidental to the practice of engineering. For example, it appears that an engineer may design, prepare plans for, and supervise the construction of dams, sewage disposal plants, water pump stations, power stations, or other similar structures. It is my opinion that an engineer may not design a gymnasium, nor may he prepare plans and specifications for the construction of a gymnaswm. OPINION 67-145 April27, 1967 You request an opinion as to whether certain employees of the Maintenance Division who are holding public offices such as County Commissioner, Mayor, etcetera, are entitled to hold public office under the Merit System Rules and Regulations. Ga. Code Ann. Ch. 40-22 establishes the Merit System of Personnel Administration in the State of Georgia. Ga. Code Ann. 40-2207 sets forth the duty of the Merit System Council to promulgate rules and regulations under which the System is to operate. Certain rules and regulations have been promulgated under the above-mentioned Code Section. In answer to your request, I would call particular attention to Section 3.100, "Prohibition of Political Activity", under rule 3, "General Provisions of the Rules and Regulations of the State Merit System". The following paragraphs of this Section are applicable to your request, to wit: "3.101. No person shall be appointed or promoted to, or demoted or dismissed from any position under the Merit System, or in any way favored or discriminated against with respect to employment under the Merit System because of his political or religious opinions or affiliations, except that no 187 employee under the Merit System shall be a member of any national, state, or local committee of a political party, or an officer of a partisan political club, or a candidate }or nomination or election to any public oj]ice, or shall take any part in the management or affairs of any political party or in any political campaign, except to exercise his rights as a citizen privately to express his opinion and to cast his vote. (Emphasis added) "3.105. Any employee under the Merit System shall resign from his position or shall be removed therefrom by the appointing authority upon becoming a candidate for public office. The employee shall be deemed to have become a candidate for public ojjice when he shall have engaged, on his own behalj; in any political meetings, canvassing, solicitation of campaign funds or in any other manner which might be construed reasonably as overtly offering his candidacy jar public ojjice. (Emphasis added) "3.106. Any employee under the Merit System who violates any of the foregoing provisions of this Section shall forfeit his position and shall be subject to such penalties as are provided in Section 6 of the Act." In view of the above, it is clear that a Merit System employee cannot legally be a candidate for nomination to any public office. The employee is deemed to have become a candidate when he engages in certain specified activities or other activities which may be reasonably construed as overtly offering his candidacy for public office. From the foregoing, it is apparent that the intent of the Rules and Regulations promulgated by the Merit System Council is to prohibit any employee under the Merit System from becoming the holder of a public office. Certainly, since the rules prohibit an employee from becoming a candidate or engaging in any overt activities to become a candidate for public office, they should be construed to prohibit the actual holding of the public office. Therefore, it is my opinion that employees under the Merit System are not entitled to hold public office under the Merit System Rules and Regulations. 188 OPINION 67-146 (Unofficial) April27, 1967 You asked for an opmwn from the Department of Law concerning the enforceability of real estate brokerage contracts entered into by a Florida real estate broker and a Georgia landowner. You state that your client, a Georgia corporation, is developing a tract of land in Glynn County. A lease has beerr negotiated between J. M. Fields, Inc., a Florida corporation, and the Georgia corporation, pursuant to which a store will be placed upon the land of the latter corporation. We understand that a Mr. C. A. Von Stein, the Florida broker, was instrumental in obtaining the Fields' lease. We further understand that Mr. Von Stein is attempting to secure other tenants for the Georgia corporation, and that no negotiations have been carried on in Georgia. It is assumed that Mr. Von Stein is not a licensed real estate broker in the State of Georgia, but that he is licensed in Florida. Your first question is as follows: "May Mr. Von Stein enter into a contract with a local real estate broker for the division of real estate commissions on the 1. M. Fields lease, which is already executed?" Generally, a real estate broker earns his commission when he secures a buyer who is ready, willing, and able to purchase. He might earn his commission, however, merely by attempting to locate a purchaser. What the broker must do to earn the commission depends entirely upon the provisions of his contract. We do not know what type of contract Mr. Von Stein has with the Georgia corporation, but since the lease, the procurement of which was apparently the object of the contract, has been executed, it would appear that Mr. Von Stein's contract probably has been fully performed. Assuming this to be the case, I do not believe that Mr. Von Stein could, in a latter contract, unilaterally alter any of the rights, privileges, or duties which have accrued as a result of his now fully executed contract with the Georgia landowner. Your second question is as follows: "May Mr. Von Stein enter into an agreement with a local real estate broker relating to any future leases or sales for which he has negotiated outside the State of Georgia?" 189 Where a Florida broker, unlicensed in Georgia, and a Georgia broker had an agreement that each would refer appropriate prospects to the other, and where the Georgia broker effectuated a sale of Georgia property to a purchaser referred by the Floridian, the United States Court of Appeals for the Fifth Circuit held that the Florida broker was not engaged in the business of a real estate broker in Georgia, and could recover the commission agreed upon with the Georgia broker. Folsom v. Young, 216 Fed. 2d 352 (1954). Based upon the holding in the Folsom case, your second question is answered in the affirmative. You have asked in your third question whether a contract between the local real estate broker and Mr. Charles Von Stein on the one hand, and Coral Park, Inc., the landowner, on the other, would be a binding contract between the parties. Mr. Von Stein may not function as a real estate broker in the State of Georgia without a license. Ga. Code Ann. 84-140 I. The Act regulating the real estate business is designed to safeguard the interest of the public. Padgett v. Silver Lake Park Corp., 168 Ga. 759 (1929). Where a statute is not merely a revenue producing act, but is intended to regulate a business for the protection of the public, contracts made in violation of the statute are void and unenforceable. Pratt v. Sloan, 41 Ga. App. 150 (1930). I direct your attention also to Ga. Code Ann. 84-1413 which provides that a claim for commissions is unenforceable unless the broker is licensed in Georgia. Perhaps it would be well at this point to note that a real estate broker is, among other things, a person who: "sells, buys, exchanges, rents, auctions, or offers or attempts to negotiate a sale, exchange, purchase or rental, or lists or solicits prospective purchasers of any estate or interest in real estate, or collects, or offers or attempts to collect rent for the use of real estate." A contract between Mr. Von Stein and a Georgia broker as one party, and the Georgia landowner as the other party, is vastly different from the referral plan which was approved of in the Folsom case. Since the usual function of a broker is to bring parties together, I believe that Mr. Von Stein would be acting as a broker in Georgia if he entered into a contract with a Georgia landowner to procure tenants to occupy premises located in this State. 190 Consequently, I suspect that a contract between Mr. Von Stein and a Georgia landowner, even if it included a Georgia broker as one of the contracting parties, might not adequately protect Mr. Von Stein's interest in his commissions. Your fourth question is as follows: "If Mr. Von Stein is able to contract, using a local real estate broker and himself, in a division of real estate commissions, must the Georgia broker reside in Glynn County, or may he reside in any section of this State?" To the extent that Mr. Von Stein may enter into a contract with a Georgia broker, he may do so with a licensed broker residing in any section of Georgia. A Georgia broker is authorized to pursue his occupation in any part of the State, without regard to the place of his residence in the State. Ga. Code Ann. Ch. 84-14. In conclusion, I believe that the brokerage arrangement which has already been litigated and approved of in the Folsom case would probably be the safest course for Mr. Von Stein to follow. OPINION 67-147 April 28, 1967 You ask whether an elected member of a county democratic committee may serve at the same time as a member of the county board of education. My answer is yes. Membership on the county democratic committee is a political position and not a county office. For this reason the general prohibition of Ga. Code Ann. 89-103 respecting an individual holding two county offices would be inapplicable, and, in the absence of any local law to the contrary, a person could hold the county office and political position at the sametime.SeeOp.Att'y Gen., 1962,p.50; 1960-61,p.59. OPINION 67-148 April28, 1967 You requested an official opinion regarding the special election to fill the 37th Senatorial District post formerly held by Senator Wesberry. Referring to a letter from Mrs. Marguerite Schott, you have posed the following problem for determination: 191 "Mrs. Schott wants to know whether or not the Fulton County Democratic Executive Committee can nominate a candidate for the special election so that the nominee would appear on the ballot as the Democratic nominee." In her letter to you, Mrs. Schott indicated that she believed that the special election ballots would carry no party designation. On the contrary, although party nominations are not required prior to a special election (Ga. Code Ann. 34-100 I(b) (iv) ), special election ballots may list party nominees as such (Ga. Code Ann. 34-1101, 34-1103, 34-1104, 34-806). Moreover, the Election Code makes specific reference to special primaries (Ga. Code Ann. 34-103(ab), 34-626), and the purpose of such a special primary would be the nomination by a political party of a candidate for the special election. Ga. Code Ann. 34-1101, 34-1103 and 34-1104 prescribe the form of paper ballots for use at all elections, not just general elections, and they include provisions for designating party nominees. Thus, the Election Code clearly contemplates that parties may nominate, at least by means of a primary, a candidate to run in a special election, and his or her name would appear on the special election ballot as the party nominee (Ga. Code Ann. 34-1103(c) ). Thus, the question is narrowed to whether or not a party may nominate a candidate to run in a special election, by convention. The procedures to be used by political parties in nominating candidates by the convention method are not governed in detail by the Election Code. See Ga. Code Ann. 34-902(b), (c); 34905(b), (c). However, it is provided that county executive committees have the power to formulate, adopt and promulgate rules and regulations governing the conduct of conventions (Ga. Code Ann. 34-902(c), 34-905(c) ). On the other hand, the certificate of nomination which is filed with you by the nominee must be "a certificate of nomination by his party or body" and must be "sworn to by the chairman and secretary of the committee (designated by the party or body)...."Ga. Code Ann. 34-lOOI(d). The rules of the State party previously filed with you should show which committee officers (chairman and secretary), executive committee or nominating committee or otherwise, have been designated by the party to execute certificates of nomination. 192 Thus, it is my opinion that the question of whether or not a county executive committee of a political party may nominate a candidate, by convention, to run in a special election, and the question as to who must sign, on behalf of the political party, such candidate's certificate of nomination, are governed by the rules of that party. OPINION 67-149 (Unofficial) April 28, 1967 In your letter you state that Fulton County has accepted ad valorem tax returns for 1967 based upon the ratio of fair market value used in the county in 1966, but that in following this procedure a notation was stamped on each return as follows: 'The State and County real estate assessment shown hereon represents 25% of fair market value. This is subject to the approval and/ or revision by the State Revenue Commissioner." You indicate that the Board of Tax Assessors plan to increase each taxpayer's assessment from 25% to 40% of fair market value prior to forwarding the digest to the State Revenue Commissioner. The question you ask is whether or not the provisions of Ga. Code Ann. 92-6911 require the Tax Assessors to give the taxpayer notice that such a change has been made. It is my understanding that the Tax Assessors in Fulton County enter a value of the property on the return to be filed by the taxpayer. This, of course, does not relieve the taxpayer of his responsibility to return his property for ad valorem taxation and to specify the value thereof on the return, which may or may not be the value placed thereon by the Tax Assessors. See State of Georgia v. Board ofPublic Lducation, 214 Ga. 607, 612 (1958). After the taxpayer has filed his return, it is the duty of the Tax Assessors, as required by Ga. Code Ann. 92-6911, to examine each return and make whatever changes, corrections or equalizations are required. This Code section provides, in part, as follows: ". . . When any such corrections, changes or equalizations shall have been made by the board, the board shall, within a 193 period of five days, give notice to any taxpayer of any changes made in his returns, either personally or by leaving same at his residence or place of business or by sending said notice through the United States mail to his last known place of address. In all cases where an assessment is made or return is changed or altered by authority of the county tax assessors, as herein provided and notice is not given personally to the taxpayer, as herein provided, the notice of such assessment or of such change shall be posted in front of the courthouse door, which posted notice shall contain the name of the owner liable to taxation, if known, and a brief description of the property, if owner is unknown, together with a statement that the assessment has been made, or the return changed or altered as the case may be, and need not contain other information.... " The above Code section requires the Tax Assessors to give notice to the taxpayer, after examining his return, of any correction, change or equalization made in such return. As you know, the Supreme Court of Georgia decided on April 20, 1967 that arbitrators acting pursuant to Ga. Code Ann. 92-6912 are not limited to a finding of the fair market value but are required to fix the assessment of the taxpayer's property and that such assessment is final except as far as the same may be affected by the findings and orders of the State Revenue Commissioner as provided by law. Whitehead v. Henson, No. 24017. This case, of course, is not final since a motion for rehearing may be filed within ten days. In view of what has been said, it appears that the Tax Assessors should give notice to the taxpayer of any change in the assessment, including the change you describe, which is made prior to sending the digest to the State Revenue Commissioner. OPINION 67-150 May I, 1967 You requested my official opinion as to whether employee pay raises granted by the State Game and Fish Commission at its meetings in September, 1966, and January, 1967, but to be effective as of July I, 1966, are in violation of the Constitution of the State of Georgia. It is provided in Article VIII, Section I, Paragraph II, of the Constitution (Ga. Code Ann. 2-5402) that: 194 "The General Assembly shall not grant or authorize extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into." It is my official opinion that the Constitutional provision set out above prohibits pay raises which are retroactive in nature. The services of the affected employees had already been rendered for the period between July I, 1966, and the dates on which the pay raises were granted, and the rates of compensation for these services had been previusly determined for this period. Consequently, the pay raises in question constitute "extra compensation" as to this period and fall within the Constitutional prohibition. It will be necessary for you to inform the employees who received such payments that they are required to repay to the State any amounts received as retroactive pay raises. I am appreciative of the fact that in certain instances repayment of these amounts in a lump sum may work a financial hardship upon certain employees. You may, as the situation in your discretion requires, prescribe a method by which an individual employee may make partial payments per pay period designed so as to effect full repayment of the obligated amount within a reasonable time. However, you should advise employees who must make such payments in installments that any amounts not repaid by June 30, 1967, must be reflected in the State Audit as a debt owed by the individual to the State. Any such employees who cannot complete their payments by June 30, 1967, must be required to execute an agreement which specifies the rate of repayment and the date upon which it will be completed. OPINION 67-151 May I, 1967 You requested an official opinion upon the following questions: (I) Does the Board of Commissioners have legal authority to hire personnel to fill key positions, both inside and outside of the framework of the State Merit System? (2) Does the Board of Commissioners have the legal authority to dismiss personnel? (3) Does the Board of Commissioners have the authority to establish a retirement policy for Department personnel'? 195 (4) Does the Board of Commissioners have the authority to retire Department personnel affected by their policy? A review of the Executive Minutes reveals that the Department of Commerce was placed under the merit system of personnel administration by Executive Order of Governor Marvin Griffin signed on September 21, 1956, pursuant to the authority provided by an Act approved February 15, 1952 (Ga. Laws 1952 p. 221, Ga. Code Ann. 40-2242). All positions and offices of the department were brought under the merit system by the Executive Order with the exception of members of the Board of Commissioners and the Secretary of the Board of Commissioners. By an Act approved March 17, 1959 (Ga. Laws 1959 pp. 262, 263) the title of the Secretary of the Board of Commissioners was changed to the title of Director of the Department of Commerce and the duties and functions of the Secretary were transferred to the Director. Article V of the Constitution of the State of Georgia was amended in 1962 by adding Section X, Paragraph I (Ga. Code Ann. 2-3505) creating the Department of Industry and Trade in lieu of and as successor to the Department of Commerce. This provision created a Board of Commissioners of the Department of Industry and Trade and provided that it " . . .shall be the policy determining body of the Department and shall have such duties, powers, authority and jurisdiction relating to the Department as shall be provided by law." Acts 1962, p. 694, (Ga. Code Ann. 40210 I et seq.) set up the Depqrtment of Industry and Trade and was activated upon the ratification of the above amendment on November 6, 1962. Ga. Code Ann. 40-2101 provides: "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." Ga. Code Ann. 40-2106 provides for the appointment of a director of the department " ...who shall be executive officer and administrative head of the department. .." who " ...shall be appointed by and serve at the pleasure of the board. . . ." This section further authorizes the board to designate an assistant director and such other employees as are necessary to carry out and effectuate the provisions of the Act. 196 In view of the foregoing, it is my opinion that all of the offices and positions of employment within the former Department of Commerce which were brought under the merit system continued under the merit system under its successor, the Department of Industry and Trade, and that with the exception of the Director and the members of the Board of Commissioners, the board must hire and terminate all personnel subject to the rules and regulations of the State Personnel Board. I believe this answers your first two questions. I call your attention to an Act approved March 23, 1960 (Ga. Laws 1960 pp. 1162, 1163, 1164, Ga. Code Ann. 40-2244) which authorizes positions of a purely policy making or confidential nature to be exempted from the merit system upon application by the head of the department to the Governor for approval and upon approval by the State Personnel Board. In answer to questions three and four, it is my opinion that the Board of Commissioners has authority to establish a retirement policy and to retire department personnel affected by their policy provided such policy is not in conflict with any law or the.ru1es and regulations of the State Personnel Board. In connection with employees covered under the Employees Retirement System, I call your attention to Ga. Code Ann. 40-2505(b) which provides: "From and after June 30, 1957, every employee covered under the provisions of this Chapter shall, upon recommendation of his department head to the board of trustees, be retired on the first day of the calendar month next succeeding that in which he attains the age of 65 years. Every such employee who has attained the age of 75 years shall be retired forthwith. On and after June 30, 1955, every such employee who at that time has attained the age of 70 years, shall be retired forthwith, and thereafter every such employee shall be retired on the first day of the calendar month next succeeding that in which he attains the age of 70 years: Provided, that nothing in this Chapter shall preclude the employment or continued employment of persons in any age category with professional, scientific and/or technical skills who are so certified to the board of trustees by their department head." You enclosed an excerpt from the Official Minutes of the Board of Commissioners dated July 15, 1963, outlining your present retirement policies which reads: 197 "At the Executive Director's discretion, employees having reached age 65 may be retained until age 70. Any present employee between age 60 and 65 may be retained five years after present age. Retirement mandatory at age 65 for all other present and future employees." It is my opinion that this policy is not in conflict with Ga. Code Ann. 40-2525(b). OPI:\IION 67-152 (Unofficial) May I, 1967 You wrote concerning a "gift enterprise" now being undertaken by the Royal Crown Bottling Company in your circuit. The enterprise involves a redemption by the Company for cash of certain bottle crowns which have a value printed on the metal cap under the cork liner. The Court of Appeals of Georgia in a recent decision indicated that this type of operation would be unlawful under existing Georgia laws. In Boyd vs. Piggly Wiggly Southern. Inc., 222 Ga. 849 (1967) the Court stated with respect to lotteries and gift enterprises: "It only remains for the appropriate law enforcement officials to perform their duties." This office has repeatedly advised those who sought our advice that such schemes violate our criminal laws. I am enclosing for your information a copy of an opinion of the Attorney General dated October 21, 1966, discussing briefly a scheme similar to that about which you inquire. OPI:\IION 67-153 May2, 1967 You wrote concerning the implementation of Article VI I, Section VL Paragraph !(d) of the Georgia Constitution (Ga. Code Ann. 2-590 I) by the political subdivisions referred to therein. In specificity you ask for an official opinion regarding the following questions: I. May a county or city commission or other local governing agency legally levy a tax for the support of an area vocational technical school operated under a contract pursuant to this section 198 of the State Constitution? Under what circumstances can such a tax be levied? 2. Will a tax levied for the support of an area vocationaltechnical school under this section be over and above the tax levy recommended by a local system board of education for the operation of the public elementary and secondary schools under Article VI I I, Section XI I, Paragraph I, of the Constitution? 3. By what means can an area board of education or local system board of education operating an area vocational-technical school give assurance to the State Board of Education that the local funds necessary for defraying the cost of operation of such a school will be provided? 4. May the State Board of Education legally require a tax levy for operating an area vocational-technical school as a prerequisite to the allotment of State funds to defray the cost of the instructional program? My opinion and the reasons therefor are as follows: OPINION 1. The governing authorities of counties or municipalities desiring to establish and maintain area vocational trade schools are authorized to levy a tax for such purposes. The circumstances under which the tax could be levied would be where the participating subdivisions have entered into an agreement for the establishment and maintenance of an area vocational trade school. 2. It is uncertain as to whether or not the tax authorized by Article VII, Section VI, Paragraph l(d), (Ga. Code Ann. 25901 (d) ) would be subject to the millage limitations of Article VIII, Section XII, Paragraph I (Ga. Laws 1966 p. 1028). If forced to hazard a guess, however, it would be my opinion that the courts would more likely than not hold that the millage limitation of the latter constitutional provision does not apply to taxation for an area vocational trade school created and maintained under Article VII, Section VI, Paragraph l(d). 3. Inasmuch as it is the govermng authorities of the participating political subdivisions and not the joint board created to administer the area vocational trade school which fix the local tax rates for support of the school, I am unaware of any means by which either the joint board or the boards of education of the 199 partiCipating subdivisions could "assure" the State Board of Education that the local funds necessary for defraying the costs of operation of such school will be provided. 4. The State Board of Education may legally require local funds to be raised by the participating political subdivisions as a condition of the grant of State funds to assist in the establishment and maintenance of the area vocational trade school. I. The fourth sentence of Article VI L Section VL Paragraph I(d) of the Georgia Constitution (Ga. Code Ann. 2-590 I) declares: "Any such political subdivision is hereby authorized to levy taxes for the support of such school regardless of whether it is located within the territorial limits of such subdivision." In my opinion this clause is self-executing and clearly empowers the governing authorities of participating counties or municipalities to levy taxes for the purpose of establishing and maintaining the area vocational trade schools provided for by said Article. As to the circumstances under which the tax could be levied, it would be my opinion that inasmuch as the authorized establishment and maintenance of an area vocational trade school by counties and/or municipalities clearly contemplates the accomplishment of such purposes by contract or agreement of the participating political subdivisions 1, the taxes could properly be levied after such contract has been entered into. 2. While Article VIL Section VL Paragraph l(d), (Ga. Code Ann. 2-590 I) is quite clear in its authorization of participating counties and cities to levy taxes to establish and maintain area vocational trade schools, it is quite unclear as to whether a participating county is subject to the millage limitation of Article VIII, Section XII, Paragraph I oftheConstitution (Ga. Laws 1966 p. 1028). This latter constitutional provision states that the fiscal 1. fhe constitutional provision provides. inter alia: "The amount of funds which each political subdivision '"stablishing such a school shall pay shall be determined and agreed upon by and between all the political subdivisions involved." 200 authority of each county shall levy the tax for support and maintenance of education, not to exceed 20 mills, which the county board of education "certifies" to such fiscal authority. Unlike the situation respecting bonded indebtedness (which is also authorized by the Article VI I provision and expressly declared to be in addition to any and all other indebtedness authorized by the Constitution), Article VI I is wholly silent as to whether the tax thereunder is subject to the general county school tax limitations of Article VI II. It is entirely possible that the courts might view such silence as an intendment that the restrictions upon county taxation for educational purposes in general under the latter section be held applicable to the tax authorized for area vocational trade schools under Article VI I. One cannot be sure. It is my considered opinion, however, that the more probable result would be that notwithstanding the aforesaid silence (and resulting uncertainty), the Article VII tax would be held to be a tax independent of that designed to support the county public school system generally (i.e. the Article VIII tax), and not subject to the millage limitations of the latter provision. Although a county obviously cannot evade the millage restrictions of Article VIII respecting the support and maintenance of the public schools generally simply by calling it a tax for something else, see Board of Commissioners of Twiggs County v. Bond, 203 Ga. 558 (1948), it has also been noted, in cases upholding the right of an additional tax levy for the payment of school bonds, that this millage limitation "for the support and maintenance of education within the county" (emphasis added) was not intended to suffice for all phases of educational expenditures. Nelms v. Stephens County School District, 201 Ga. 274, 275 (1946); see also Seaboard Air-Line Railway Co. v. Wright, 165 Ga. 367 (I)( 1927). I think the difference in design of the two constitutional articles here in question is apparent. Article VIII deals with the general support of schools within the county while Article VII deals with an "area" school in which the county is only one participant. In addition, the tax levied under each provision is in actuality fixed by a different entity. The Article VII tax is a permissive tax which the county fiscal authorities may but need not levy. The county board of education has no say at all in the matter. The Article VIII tax, on the other hand, is one over which the county fiscal authorities have no discretion whatsoever. They are required to levy the exact tax (so long as the maximum millage 201 specified therein is not exceeded) recommended by the county board of education. See County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenues of Wilcox County, 20 I Ga. 815 ( 1947). These differences would to me seem to indicate that the Article VII tax is wholly independent of the Article VIll tax and not intended to be subject to the millage restrictions of the latter. 3. Article VI I, Section VI, Paragraph I (d) (Ga. Code Ann. 2590 I(d)) places the taxing power for the support of an area vocational trade school created thereunder not in the joint board created by the participating counties andjor municipalities to administer the school, but in such participating political subdivisions themselves. For this reason, I am unaware of any way in which the joint board could "assure" or otherwise guarantee to the State Board of Education that the local funds necessary for defraying the costs of operation of such school will be provided. 4. Article VII, Section VI, Paragraph l(d) (Ga. Code Ann. 2590 I(d)) also provides: "The State is hereby authorized to expend funds for the support of such schools as it does for presently established school systems." In my opinion the same provisions of the Minimum Foundation Program of Education Act utilized by the State Board of Education to require local school systems to provide local funds for the support of education generally could be used to require local funds to be raised by the participating political subdivisions as a condition of the grant of State funds in support of an area vocational trade school under Article VI I. The State Board of Education may promulgate reasonable ruiees and regulations in accordance with the State plan of vocational education, Ga. Code Ann. 32-632, and in the event a local unit shall fail to comply with the same, it may withhold from such local unit all or any part of the State contributed minimum foundation program funds, Ga. Code Ann. 32-656. In addition, Ga. Code Ann. 32-645 expressly provides for the withholding of State funds if a local school unit fails to provide or use the amount of local funds required to be raised and used in support of education under the Act. 202 OPINION 67-154 May 2, 1967 You requested an opinion in regards to an application for an individual bond, an application for a contract bid or maintenance bond and a proposed surety bond, of which a copy of each was enclosed with your request. Since the subject of an application for a bond is a matter between the individual being bonded, the bonding company, and the Structural Pest Control Commission, I do not believe that I should comment on the form or contents of such applications. Concerning the blank specimen surety bond which you enclosed, the same appears to be sufficient as to form with no apparent defects. Of course, you realize that a defect in the execution or the supplied contents of such a bond at a later date could cause same to be fatally defective. Thus, the actual validity of each bond will have to be determined by its individual contents and execution. Enclosed please find the copies of the applications and specimen bond which you forwarded to me with your request for this opinion. OPINION 67-155 May 2, 1967 In your letter you inquire as to whether there are any Georgia Laws requiring a person to stop at the scene of an accident and render assistance or emergency first aid. In regards to this matter I have been unable to find any laws of this State which expressly require a person to render emergency assistance. Possibly, if some special relationship exists between the involved parties some duty or obligation could arise, but such would be the exception rather than the rule. Undoubtedly you are interested in the laws which are generally classified as "Good Samaritan Laws". In reference to this subject, please find enclosed a xeroxed copy of a Mercer Law Review article on this subject which I authored while in Law School. You might find it interesting reading especially pages 477 through 480 as such contains a general discussion concerning the duty of a person to render aid. Additionally, you requested the names and addresses of various Attorney Generals. Following you will find the information which you requested: 203 Alabama Hon. MacDonald Gallion Attorney General of Alabama State Administration Building Montgomery, Alabama 36104 Arkansas Hon. Joe Purcell Attorney General of Arkansas Supreme Court Building Little Rock, Arkansas 7220 I Florida Hon. Earl Faircloth Attorney General of Florida State Capitol Tallahassee, Florida 32304 Kentucky Hon. Robert F. Matthews Attorney General of Kentucky State Capitol Frankfort, Kentucky 4060 I Louisiana Hon. Jack P. F. Gremillion Attorney General of Louisiana State Capitol Baton Rouge, Louisiana 70804 Mississippi Hon. Joe T. Patterson Attorney General of Mississippi State Capitol Jackson, Mississippi 3920 I North Carolina Hon. T. Wade Bruton Attorney General of North Carolina Department of Justice Building Box 629 Raleigh, North Carolina 27602 204 South Carolina Hon. Daniel R. McLeod Attorney General of South Carolina Hampton Office Building Columbia, South Carolina 2920 I Tennessee Hon. George F. McCanless Attorney General of Tennessee Supreme Court Building Nashville, Tennessee 37219 OPINION 67-156 May3, 1967 You requested an official opinion concerning the status of the above prisoner. Albert J. Mathis was convicted for rape on September 27, 1965, and received a sentence of fifteen (15) years. He was later convicted for the offense of inveigling children and given a sentence of four (4) years to run consecutively with the first sentence. The rape sentence was reversed on July 7, 1966, by the Georgia Supreme Court because of an error in the court's charge to the jury. The question then presented is when the four-year sentence should begin to run. It has been generally held that a second sentence which was to run consecutively should commence at the termination of the first, no matter what brought about that termination. 15 Am. Jur. 467, p. 125. This appears to be the holding of at least one Georgia case, Jackson v. State, 91 Ga. App. 291, 85 S. E. 2d 444 ( 1954), even though the first sentence in that case was terminated by parole. There appears to be no authority which would hold that the sentence should be computed from any date other than July 7, 1966. The first stencne was reversed on that date, and the prisoner therefore began serving the second sentence at that time. Therefore, in my official opinion, the second sentence should be computed from July 7, 1966, the date of the reversal of the first sentence. 205 OPINION 67-157 May3, 1967 You requested an official opinion relative to the jurisdiction of courts for various traffic violations which occur within the corporate limits of municipalities. Ga. Code Ann. 92A-50 I extends the jurisdiction of municipal courts and police courts of incorporated towns and cities to allow them to conduct trials and receive pleas of guilty and impose sentences upon defendants violating the penal provision of Chapters 92A-l thru 92A-5 and any and all other criminal laws relating to traffic upon the highways, streets and public roads of the State where the penalty does not exceed the grade of misdemeanor. However, there are some restrictions on this jurisdiction. These restrictions are: I. There must be no city or county court within the county wherein the municipality is located (Ga. Code Ann. 92A502 and 92A-511). 2. The defendant must waive a jury trial (Ga. Code Ann. 92A-502 and 92A-504). 3. Violation must occur within territorial limits of the municipality (Ga. Code Ann. 92A-503). Therefore, in summary, municipal courts, police courts, mayor's courts or recorder's courts have jurisdiction when the offense occurs within the incorporated limits of the municipality in a county which has no city or county court and the defendant waives a jury trial. In respect to your specific inquiry, under the foregoing conditions, a municipal court has jurisdiction over the offenses of driving under the int1uence of intoxicating liquor or drugs, driving a vehicle without a driver's license and/ or a revoked, suspended or cancelled driver's license, without a state inspection sticker andjor expired state inspection sticker, driving a vehicle without a state license plate and/ or an illegal or expired state license plate and other traffic offenses occurring on the public roads of the municipality. Your attention is also directed to Op. Att'y Gen. 1960-1961, p. 96, for an opinion dealing primarily with the same subject matter. 206 OPINION 67-158 (Unofficial) May 3, 1967 You ask for an opinion concerning House Bill 91 passed by the 1967 General Assembly of Georgia, and signed by the Governor on March 17, 1967 as Act Number 52. This Act amends the Motor Vehicle Tag-Tax Act of 1966 by adding a new section numbered as Section l A which provides in paragraph four thereof as follows: "All new motor vehicles in transit and not actually in a dealer's inventory on January I of each year shall not be subject to taxation for that year. Dealers shall submit proof that each such motor vehicle was actually received after January 1st of that year." You ask if the Act in question exempts such a motor vehicle from taxation in Georgia if the same was owned in Georgia on January l. The Constitution of the State of Georgia provides in Article VII, Section I, Paragraph IV that: "All laws exempting property from taxation, other than the property herein enumerated, shall be void." (Ga. Code Ann. 2-5404). It is my opinion that a law which attempts to exempt property from taxation, other than the property specified in the Constitution, would be void and unconstitutional, as motor vehicles are not enumerated in our Constitution as exempt property. A correct construction of House Bill 91 would not lead to any exemption from taxation. Properly construed Section IA provides merely that a franchised automobile dealer shall not be subject to taxation on a vehicle unless he had actually received it before January I of the tax year. If the vehicle had acquired a tax situs in Georgia prior to delivery to the dealer, it would be taxed as the property of the owner, presumably the manufacturer, under these circumstances. An automobile manufactured in December in Georgia, but delivered to a Georgia new car dealer after January I, would be subject to taxation as the property of the manufacturer under this Act and not as the property of the dealer. See, also, House Bill Number 233, signed by the Governor on April II, 1967, as Act Number 375. 207 OPINION 67-159 (Unofficial) May3, 1967 You wrote concerning the ad valorem taxation of "eggs" under four factual situations. Ga. Code Ann. 92-20 I provides, in part, as follows: "The following described property shall be exempt from taxation, to wit: ... farm products, including baled cotton grown in this State and remaining in the hands of the producer, but not longer than the year next after their production." In an unofficial opinion dated June 20, 1962 (Op. Att'y Gen. 1962, p. 481 ), the then Attorney General held that eggs are farm products within the meaning of the above statute. However, in order to be exempt from ad valorem taxation for the year next after their production, farm products must remain in the hands of the producer. A producer is defined in Webster"s Third New International Dictionary as follows: " ...one that grows agricultural products. The first question asked is as follows: "I. 'A' Corporation is engaged in buying eggs from third parties and then selling them to the public. Are the eggs subject to ad valorem taxation when in the hands of 'A' Corporation?" In this case the eggs would not be exempt from taxation because they did not remain in the hands of the producer but were purchased from the producer by "A" Corporation. Your second question was: "2. 'B' Corporation leases farms on which the flocks of laying hens owned by the corporation are kept. The farmerlessee [lessor] cares for the hens and oversees the egg production. However, the farmer receives for his services a salary which is not dependent on egg production or price. Are the eggs subject to ad valorem taxation when in the hands of 'B' Corporation?" Under the facts presented here, it is my opinion that '"B" 208 Corporation is the producer of the eggs; therefore, the eggs remaining in the hands of "B" Corporation would be exempt from ad valorem taxation for the year next after production. In this instance, it appears that the corporation merely hired an employee to work under its control and supervision in "growing" the farm product. Your next question was: "3. 'C' Corporation owns its flocks of laying hens but it contracts with farmers who care for the hens and oversee egg production. The farmer is compensated on a commission basis by which his earnings are correlated to egg production or egg price, or both. Are the eggs subject to ad valorem taxation when in the hands of 'C' Corporation?" In this instance the contract between the parties would have to be examined in detail to determine whether the farmer, corporation or both are the producers of the eggs within the meaning of Ga. Code Ann. 92-201. It appears from the facts cited that the farmer may be an independent contractor. Assuming this to be true, the farmer as an independent contractor, exercising full control and discretion as to the production of the eggs, would be the true producer and the eggs would not be exempt from taxation when transferred to the corporation. Your last question was: "4. 'D' Corporation owns its own laying hens and keeps them on its own lands. It hires individuals to oversee the hens. Are eggs thus produced subject to ad valorem taxation?" The factual situation here is similar to that presented in Question 2. It is my opinion that the eggs would be exempt from ad valorem taxation for the year next after production for the same reasons stated in Question 2. OPINION 67-160 (Unofficial) May 5, 1967 This refers to your letter of April 24, 1967, wherein you refer to a local bill which would provide, in the event it is approved by the voters of Dooly County: ''for the election of the Dooly County Board of Education by 209 the people and for the appointment of the County School Superintendent of Dooly by the Board." You point out that the Constitutional Amendment under which the local bill was passed, to wit: Ga. Laws \966 pp. 76\-763, authorizes changes in the term, compensation, manner of election or appointment of county school board members by local law in a section different from the section of such Amendment authorizing like changes respecting the county school superintendent. Your letter asks for an opinion as to whether this fact prevents the questions of how board members and how the superintendent shall be selected, from being presented to the voters as a package rather than as separate questions. Your letter also raises, as an incidental question, the problem of a misdescription of Militia Districts. I am unaware of any reason why the question of how a county school board and county school superintendent are to be selected cannot be presented to the voters as a package proposal rather than as separate questions. It would seem obvious that the reason that the single Constitutional Amendment dealt with county boards of education and county school superintendents in separate sections of the Amendment was the fact that the section dealing with school boards (i.e. Section I) was intended to amend Section V of Article VIll of the Georgia Constitution (the already existing section dealing with the term, selection, etc. of county school board members) while the section dealing with school superintendents (i.e. Section 2) was designed to af!1end Section VI of Article VIII (the already existing section relating to the term, selection, etc. of county school superintendents). While the Constitutional Amendment in both sections requires that the authorized changes in selection, term, etc. by localla w be approved by the voters of the county, there is no mandate that changes respecting the selection of a school board and superintendent be separately passed upon by the voters. Nor in view of the interrelationship between a county school board and the county school superintendent, could it be said to be unreasonable for the question to be acted upon as a package. Nor is it without significance that the Constitutional Amendment, while dealing with boards and superintendents in separate sections thereof, is in fact a single amendment rather than two constitutional amendments, and that it was itself voted upon and ratified by the voters as a package rather than presented as two separate and independent questions. While I have not seen the actual bill pertaining to Dooly County, 210 I would say of the misdescription of the two militia districts which you mention that if the matter is one where taking the bill as a whole, the militia districts to which it actually intended to refer can be determined, this clerical error would not be fatal. OPINION 67-161 (Unofficial) MayS, 1967 You ask certain questions concerning a special license plate for handicapped veterans. In your letter you state that you were disabled as a result of wounds received in Viet Nam. You acknowledge that you are not covered by the Federal statute which provides for aid in purchasing an automobile for World War II and Korean veterans suffering from disabilities. U.S.C.A., Section 18, U.S.C.A., Section 1901. Ga. Code Ann. 68-254, provides for the issuance of free license tags to disabled veterans. Unfortunately, benefit of this state statute is afforded only those veterans who qualify for financial assistance provided by the Federal statute. Therefore, until the Federal law is amended to include you within its provisions, or the State law is so amended, the State is not authorized to issue you a free disabled veteran's tag. OPINION 67-162 May 5, 1967 You asked for the assistance of this office in determining whether the Georgia Higher Education Facilities Commission has the proper legal authority to apply for, receive and administer grants from the U.S. Department of Health, Education and Welfare for comprehensive planning to determine construction needs of institutions of higher learning pursuant to the Higher Education Facilities Act of 1963 as amended by Public Law 89-752, 20 U .S.C. 1121-1129. As you know, the Georgia Higher Education Facilities Commission was created by an Executive Order dated December 19, 1963. In such Order, the Commission was authorized, inter alia, to take all action necessary to participate and obtain grants or loans from the United States Government for the construction, 211 rehabilitation or improvement of needed academic facilities as provided for by the Higher Education Facilities Act of 1963 and to contract with consultant, research and professional firms, institutions or agencies as the Commission may deem necessary. On December 19, 1966, the Attorney General certified to the Commission of Education that the Governor of Georgia is legally authorized to create the Higher Education Facilities Commission by an Executive Order. I am not aware of any statutory enactments or Executive Orders limiting the scope of the Commission's powers with regard to obtaining grants for the planning of higher education facilities within this State. Accordingly, I believe that the Commission does have the authority and responsibility to apply for, receive and administer the proposed grant under the Comprehensive Planning Grant Program which is authorized by the U.S. Office of Education. OPINION 67-163 May 9, 1967 You requested an opmwn as to whether you should issue a certificate of incorporation upon an application for a charter under the circumstances described below. In your letter you stated that an application for a charter was forwarded to your office for filing and for the issuing of a certificate of incorporation and that said charter contained no allegations as to the time of existence for the proposed corporation. According to the copy of the petition for incorporation you enclosed, the only reference to time is that contained in Paragraph No. 3 wherein the petitioners stated that "the corporation desires the right of renewal as may from time to time be provided by law." After setting forth the other information necessary to incorporation, the petition states in Paragraph No. 8 that "applicants desire that said corporation shall have all the powers and privileges allowed by law to corporations of like character, whether or not said powers are specifically prayed." Apparently by this allegation the petitioners were desirous of acquiring the corporate powers set out in Ga. Code Ann. 22-1827 and 22-1828. The Corporation Act of 1938 (Ga. Laws 1937-38, Extra. Sess., 212 pp. 214 et al.; Ga. Code Ann. 22-1802) provides that an application for incorporation " . . .shall set forth: (e) time not exceeding 35 years. The time, not exceeding 35 years, for which the corporation is to have existence." Thus, according to the above statute, one of the facts which the application " . . .shall set forth . . ." is the time of corporate existence. Additionally, in Ga. Code Ann. 22-1809 the certificate which you issue upon incorporation states as follows: This is to certify that (the name of the corporation) has been duly incorporated under the laws of the State of Georgia, on the day of 19 , for a period of years from said date, _ __ It is therefore my opm10n that you should not certify the incorporation of an entity when the application does not set forth the facts as required by Ga. Code Ann. 22-1802 since your certification states that the corporation " ... has been duly incorporated under the laws of the State of Georgia, ..." whereas, in fact, the application does not meet the requirements of Ga. Code Ann. 22-1802 (e). This is additionally true in reference to the period of time for the existence of the corporation since you are required to place in your certification the period of existence for the corporation. When a charter application fails to state the time for existence you have no way of ascertaining the period of time which must be placed in the certification. OPINION 67-164 May 12, 1967 You requested my official opm1on as to the interpretation of Section 13-2039 of the Banking Law which provides: "When a deposit has been made, or shall hereafter be made, in any bank in the names of two persons, payable to either, or payable to either or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other be living or not; and the receipt or acquittance of the persons so paid shall be a valid and sufficient release and discharge to the bank for any payment so made." 213 The question presented is whether this proviSIOn affords protection to a bank where a certificate is issued in the name of more than two persons and the bank makes payment to one of the survivors upon the death of one of the persons. It is my opinion that Section 13-2039 must be interpreted just as it is written and that its terms apply only to joint accounts of not more than two persons. OPI:\IION 67-165 (Unofficial) May 12, 1967 You ask whether or not there is any statutory prohibition against the installation of four-way stop signs by a city. Since we do not know where the city contemplates placing traffic control devices, it would be appropriate to point out the statutes which may have bearing upon the question. The State Highway Board has the exclusive prerogative of placing and maintaining traffic control devices upon state highways, including those highways which are within municipalities. Ga. Code Ann. 68-1610. It appears, however, that a municipality may be able to place traffic control devices upon state highways which are under the jurisdiction of the State Highway Board provided the Highway Board gives its consent. Ga. Code Ann. 68-1610(b). Local authorities may place and maintain traffic control devices upon streets which are under their jurisdiction. Traffic control devices which are erected by local authorities "shall conform to the State manual and specifications." Ga. Code Ann. 68-1611. OPINION 67-166 (Unofficial) May 12, 1967 You ask whether an automobile salesman, in repossessing a vehicle with an expired motor vehicle inspection sticker, is entitled to return the automobile to his place of business for inspection. You have stated in your letter that a dealer in your county was stopped by a State patrolman while returning such an automobile and charged with operating a motor vehicle on the highways with an expired motor vehicle inspection sticker. 214 There are statutory provisions which allow the owner or driver of a vehicle to return the same to his residence or place of business or to a garage for the purpose of obtaining necessary repairs and adjustments. The foregoing provisions, however, relate only to a situation in which the Director of the Department of Public Safety has given notice that the vehicle is in an unsafe condition. Ga. Code Ann. 68-1724 and 68-1725. Ga. Code Ann. 68-1726 requires that every vehicle be inspected within the twelve month period following the date of the last inspection, and that the vehicle must bear a current inspection sticker. 1t is my opinion that the provisions which permit the return of a vehicle to a place of residence, place of business, or a garage for the purpose of obtaining repairs after notice has been given by the Director of the Department of Public Safety that the vehicle is in an unsafe condition are inapplicable in those cases which relate to vehicles bearing expired motor vehicle inspection certificates. OPINION 67-167 (Unofficial) May 12, 1967 You have posed a problem concerning the time for holding a municipal election. You point out that the charter of the City of Moultrie provides that "The polls shall be open at half-past seven A.M. and close at six P.M. standard time", and you inquire as to whether the words "standard time" as used in the charter refer to eastern standard time or to eastern daylight time. As you are aware, Senate Bill No. 8, enacted at the 1967 Session of the General Assembly, was repealed by its own terms upon the failure of as many as four adjoining states to exempt themselves by April 30, 1967, from the provisions of the "Uniform Time Act of 1966", Public Law 89-387, 89th Congress, 80 Stat. I07, 15 U.S.C.A. 260etseq. The State of Georgia is now operating under the "Uniform Time Act of 1966", supra. That Act does not create what is commonly referred to as "daylight saving time", but changes "standard time" by advancing the time by one hour at 2:00 a.m. on the last Sunday of April of each year. The new time, thus created, is denominated by the Uniform Time Act as "standard time". E.g. 15 U.S.C.A. 260A(a). 215 Thus, in holding your election, the polls should open and close at the time specified in the charter according to the clocks as currently set in Moultrie and throughout Georgia. OPI~ION 67-168 May 15, 1967 You requested an op1mon as to whether an applicant for the examination to obtain a license as a landscape architect must have served under a licensed landscape architect when doing his practical training when such applicant has a degree from an approved school. Under Ga. Code Ann. 84-4010, the following requirements are necessary for an applicant to be entitled to stand the examination for a license to practice as a landscape architect in Georgia: Subject to rules and regulations governing examinations, any person over the age of 21 years, having six years of training and educational experience in actual practice of landscape architectural work shall be entitled to an examination for a license to practice landscape architecture in Georgia. A degree from a school of landscape architecture, approved by the board, shall be deemed equivalent to four years of training and educational experience in the actual practice of landscape architecture. Before taking the examination, he shall file his application therefor with the Joint Secretary and pay the application fee fixed by this Chapter. Any person who does not hold a degree from an accredited school of landscape architecture, but has seven years experience in the office of a licensed landscape architect, may apply for the examination. Under the above statute, an applicant must have " ... six years of training and educational experience in actual practice of landscape architectural work ...." An applicant who has a degree from an approved school of landscape architecture is given credit for four years towards the required six years, so as to leave necessary only two years of practical experience. It is my opinion that the above statute does not require that the two years of practical experience be obtained in the office of a licensed landscape architect. If an applicant submits to the Board sufficient information concerning his practical experience as to satisfy the Board that two years have been spent by the applicant 216 in actual practice of landscape architectural work . . .", then that applicant, providing he has met all other requirements, is entitled to take the examination to obtain a license to practice as a landscape architect in Georgia. The requirement that the applicant practice in the office of a licensed landscape architect applies only to those persons who do not have a degree from an accredited school. Your attention is called to Ga. Code Ann. 84-4009 wherein persons pursuing certain occupations are exempted from the provisions regulating the examination and licensing of landscape architects. If a person were pursuing an occupation such as an agriculturist, nurseryman, or architect, and was thus exempt from the provisions of the act regarding landscape architects, but in said occupation performed such work as to acquire experience thereby in the ". . . actual practice of landscape architectural work ... ",then that portion of such work could be applied toward the necessary two years of practical experience. Thus, the practical experience required must be of such a nature as to be"... landscape architectural work ..."and must consist of two years of such work. It is my opinion that such work does not necessarily have to be performed in the office of a licensed landscape architect. OPINION 67-169 May 15, 1967 As I understand the facts, a vacancy occurred in the office of justice of the peace of Henry County. A special election was called to fill that vacancy. A candidate qualified for that office. After the date for qualification closed, there being no announced or qualified opposition, the candidate withdrew, thereby making the holding of the election unnecessary. The Ordinary then appointed the candidate to the office of justice of the peace pursuant to the authority contained in Ga. Code Ann. 24-408. It now appears that the appointee actually resides in an adjoining county. As you know, this office has been called upon to interpret the provisions of Ga. Code Ann. 24-406, relating to the election to fill the vacancy in the office of justice of the peace, in connection with the Georgia Election Code. We have come to the conclusion that the provision in Ga. Code Ann. 24-406 that such election 217 shall be held within thirty days from the date the vacancy occurs has been superseded by Ga. Code Ann. 34-806 which provides that at least thirty days shall intervene between the call of a special election and the date upon which it is held. For your information, enclosed are copies of unofficial opinions rendered to the County Attorney of Fannin County on February 21, 1967, and to the Ordinary of Clayton County on April6, 1967, to that effect. As you are aware, Ga. Code Ann. 34-1515 provides that: "Whenever any primary or election shall fail to fill a particular nomination or office and such failure cannot be cured by a runoff primary or election, or whenever any person elected to public office shall die or withdraw prior to taking office, then the authority, with whom the candidates for such nomination or office filed their notice of candidacy, shall thereupon call a special primary or election to fill such position." It is only where a special election has been called but has not been held by reason of the fact that no one qualified, that the appointive power pursuant to Ga. Code Ann. 24-408 would come into operation. That Code Section provides that: "When any district is without a justice of the peace, and an election has been legally ordered to supply the vacancy, and none is bona fide held at the time and place designated, the ordinary shall appoint some person resident in the district, and certify the appointment to the Governor, who must commission the appointee for the required term." Under the circumstances existing in Henry County, I believe the appointive power of Ga. Code Ann. 24-408 to be valid. Normally, even though there was only one candidate for a particular office, the election should be held, in order that the vacancy may be filled legally and to preserve the rights of write-in voters. However, there apparently is a problem of residency involved in the appointment. The provisions of Ga. Code Ann. 89-50 I(5) appear to be inapplicable as they relate to the movement of an incumbent from the county of his residence. The provisions of Ga. Code Ann. 89-10 I(7), applicable to county officers, are not applicable to a justice of the peace. Davis v. 218 Mercer, 48 Ga. 191, 192 (1933). On the other hand, Subsection (6) of Ga. Code Ann. 89-10 I, which relates to "Those who have not been inhabitants of the State, county, district, or circuit for the period required by the Constitution and laws of this State", would appear to be applicable, because Ga. Code Ann. 24-408, supra, provides that " ... the ordinary shall appoint some person resident in the district . . . ." However, the preamble to Ga. Code Ann. 89-10 I provides that: "The following persons are held and deemed ineligible to hold any civil office, and the existence of any of the following states of facts shall be a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, shall be valid as the acts of an officer de facto ...." Hence, it would appear that the appointed justice of the peace, if he is not a resident of the county and district, is ineligible to hold that office but that his acts, while holding a commission, are valid as the acts of an officer de facto. OPINION 67-170 May 15, 1967 You requested my opinion as to the legality of a credit union acting as a guarantor or insurer of loans and deposits of the credit umon. If the credit union is issuing insurance contracts as you imply, then there can be little question but that such activity is unauthorized. Although you state that there is no cost to the insureds, it could hardly be disputed that an agreement by the credit union to indemnify or pay to another a certain sum in the event of certain determinable contingencies would constitute a contract of insurance. See Ga. Code Ann. 56-102, Georgia Insurance Code. If payment is to be made upon the death of the insured, it constitutes a life insurance contract. Ga. Code Ann. 56-250 I, Georgia Insurance Code. Such contracts generally may be issued only by licensed insurers under the provisions of the Insurance Code. It is generally held that an agreement to cancel a debt in the event of the death of the debtor is insurance. For a discussion of the various cases on this point, see 1954-56 Op. Att'y Gen. p. 429 and an opinion to the Insurance Commissioner dated May 21, 1964. 219 It is my opinion that your question must be answered in the negative as such an undertaking would be in violation of the Georgia Insurance Code. Additionally, I question the wisdom and authority of a credit union using the funds of its members for this purpose and in my opinion, it has no power or authority to legally do so. OPINION 67-171 (Unofficial) May 15, 1967 This is in reply to your letter wherein you ask if persons on active duty in the Armed Forces are exempt from ad valorem taxes on motor vehicles. The Soldiers' and Sailors' Civil Relief Act does provide that persons on active duty are not liable for ad valorem taxes in states where they serve but they remain liable for property taxes in the state of their legal residence and domicile. For example, if a legal resident of Clay County, Georgia, is in the military service, he is not exempt from payment of ad valorem taxes on his motor vehicle in Clay County. OPINION 67-172 May 15, 1967 You wrote concerning the possible reversion of a portion of a tract of land occupied by the State Highway Patrol Barracks in Polk County. As I understand it from your letter and from the letter of Mr. Wayne W. Gammon to you, the facts are as follows: In 1952 the Board of Commissioners of Roads and Revenues of Polk County deeded approximately two acres of land situated at the intersection of U. S. Highway 27 and Joseph Blance Road, to the State of Georgia. The deed contained the following provision: "It is expressly understood and agreed by and between the grantor and grantee in this instrument that Polk County, Georgia, is conveying the within described property to the State of Georgia for the purpose of the State of Georgia maintaining and operating a State Patrol Headquarters or 220 post on said property, and this deed is accepted by the State of Georgia subject to said condition, and the further condition that if and when the State of Georgia discontinues the operation and maintenance of a State Patrol Headquarters or post on said property, then and in that event, the full and complete title to the property herein conveyed to the State of Georgia for said purpose shall automatically revert to Polk County, Georgia." The State Highway Patrol Barracks located on said tract does not occupy or use the entire tract, and Polk County is desirous of obtaining a triangle portion of the tract of approximately onethird acre so that the County may sell it to a private individual. Mr. Gammon has indicated in his letter to you that he believes that the removal of this one-third acre would not interfere with the operation of the Patrol Barracks and that the Department of Public Safety might declare it surplus. The question thus becomes whether or not the State, having built a barracks upon a tract of land subject to reversion, may declare a portion of that tract surplus so as to create a reversion to the original grantor. Although the language of the deed, quoted above, does not appear to contemplate such a partial reversion, it appears to me that if the Department of Public Safety were to declare the portion of the tract in question surplus and attempt to have it transferred to any other Department of the State, the original grantor could claim the right of reversion. Therefore, it is my opinion that if the Department of Public Safety declares the subject portion of the tract surplus and declares that it is no longer being used for the operation and maintenance of a State Patrol Headquarters or post, then the title to that portion of the property would revert to Polk County. OPI~ION 67-173 (Unofficial) May 15, 1967 This is in reply to your letter wherein you ask the following: "The Fitzgerald Automobile Dealers Association would appreciate an opinion from you on the following circum- 221 stances: An automobile has been sold to an individual in one year and has been repossessed by the dealer in the next year because of default. Our question is, must the dealer pay the ad valorem tax on this unit, or will it be charged back to the person who owned the car on the first of the year?" Ga. Code Ann. 92-1503 provides as follows: "Every motor vehicle owned in the State of Georgia on the first day of January is subject to ad valorem taxation by the various taxing jurisdictions authorized to impose an ad valorem tax on the property. Taxes shall be charged against the owner if known and against the specific property if the owner is not known." Under the above factual situation, the owner of the motor vehicle on January I is liable for the ad valorem taxes for that year and not the dealer who acquired the vehicle after January I. However, the taxes due also create a lien against the property. At this point it should be noted that Georgia Code Annotated, Section 92-1504 provides that no license tag for any motor vehicle shall be issued until all ad valorem taxes due on the vehicle on or after January I, 1967 have been paid. Consequently, a license tag cannot be obtained for the vehicle you describe until the ad valorem taxes have been paid. OPINION 67-174 May 16, 1967 You wrote concerning the equalization of taxable values of property among counties as required by Ga. Laws 1966, p. 45. Your first question was: "I. If the digest is not approved and is returned to the county for correction, must individual notices be mailed to each taxpayer advising him of the change in his assessment?" Ga. Laws 1966, p. 45, provides, in part, as follows: "Section 2. Upon the giving of notice by the State Revenue Commissioner of changes or corrections to be made in the county tax digest, it shall be the duty of the chairman of the county board of tax assessors of the county affected, to call immediately a meeting of said county board, and at said meeting the board shall correct the county valuation upon the 222 class or classes of property specified by the State Revenue Commissioner, so as to make the same conform to the findings of the Commissioner by applying uniformly to the specified class or classes of property the fixed per centum of increase or of decrease specified by the State Revenue Commissioner and by raising or lowering all the individual returns of all the taxpayers of the county upon the specified class or classes of property accordingly." After the County Board of Tax Assessors receives notice from you, they are required to immediately raise or lower the valuation of the specified class or classes of property on all the individual tax returns by a fixed per centum so as to conform to your findings, but there is no provision requiring that notice of such change be mailed to each taxpayer. Your second question was: "2. What right of appeal does the taxpayer have to any change in his assessment resulting from my order?" First of all, let me point out that prior to the time the county tax digest is sent to you for examination it is the duty of the various county boards of tax assessors to see that all taxable property within the county is returned at its fair valuation and that the assessments are fairly and justly equalized among the taxpayers. Ga. Code Ann. 92-6911. After the assessments are made by the county tax assessors, each taxpayer is given notice and opportunity to be heard before the assessment becomes final subject, of course, to your findings. Ga. Code Ann. 92-6912. Whitehead v. Henson, 222 Ga. 429 (1967) You have no authority under the 1966 Act to equalize taxable values among the counties by any means other than requiring that the valuations upon a class or classes of property be raised or lowered by a fixed per centum. In other words, when a county digest is corrected or changed pursuant to your direction, all assessments on the same class of property within the county are raised or lowered by the same fixed per centum. There is no provision in the 1966 Act authorizing each individual taxpayer to appeal your finding that the county wherein the taxpayer has property must raise or lower the valuations on a class or classes of property by a fixed per centum. Your last question was: 223 "3. The 1966 Act states that I should order changes in any class or classes of property. In this respect, is my authority limited to ordering changes in one or more of the three classes of property (tangible, intangible, automobiles), or may I order changes in sub-classes of property (real estate, personal property, types of personal property such as machinery and equipment, inventories, etc.)?" Ga. Laws 1966, p. 45, provides, in part, as follows: ''Section I. Beginning with the tax digests which are prepared for the calendar year 1967, "a. It shall be the duty of the State Revenue Commissioner to carefully examine the tax digests of the several counties filed in his office pursuant to the provisions of Code Section 92-6917, and to compare said digests for the purpose of ascertaining whether the valuation of the various classes of property as made in the respective counties jar taxation is reasonably unijorm as between the various counties .... (Emphasis added) "b. It is the purpose and intent of this Act to bring about as far as practicable an equalization throughout the State of the values of the various classes of property subject to taxation A cardinal rule governing the construction of statutes is to give effect to the intention of the legislature. Undercojler v. Capital Automobile Company, Ill Ga. App. 709,716 (1965). As noted above, the legislature referred to the various classes of property valued in the counties whereas tangible property was the only class of property to be valued by the counties. By referring to the various classes of property, it is apparent that the legislature was aware that tangible property is divided into several sub-classes in the county tax digests. Also it was common knowledge that in the past some counties have valued the various sub-classes of tangible property at different ratios of fair market value. To construe this Act as giving you the limited authority to direct that the valuation of tangible property within a county be raised or lowered by a fixed per centum, without regard to the fact that tangible property is listed on the digest in various sub-classes, could in some instances violate the uniformity provision of the Constitution of Georgia of 1945 (Article VII, Section I, Paragraph II 1). 224 In view of what has been said, it is my opinion that the provisions of Ga. Laws 1966, p. 45, authorize you to adjust and equalize the tax digests of the various counties by adding or deducting a fixed per centum from the valuation of each subclass of tangible property listed in the county tax digests. OPINION 67-175 (Unofficial) May 16, 1967 You asked whether a person accused of operating a motor vehicle under the influence of intoxicating liquor in Toombs County should be acquitted of such offense if he has demanded and has been refused a blood alcohol test. The Department of Law understands from your request that there are no facilities within Toombs County for making blood alcohol tests. As you know, a person who is arrested for operating a motor vehicle while under the influence of intoxicating liquor must, upon his demand, be given a blood alcohol test, "provided the facilities for making such a test are available in the county of his confinement." Ga. Code Ann., 68-1625(b) 4. In a county where there are no facilities for administering a blood alcohol test, it is my opinion that a person accused of operating a motor vehicle under the inf1uence of alcohol would not necessarily have to be acquitted solely because of a failure on the part of public officials to administer such tests. It appears to me that a right to a blood alcohol test is, by statute, predicated upon the existence of facilities within the county to administer such tests. It further appears from your letter, that there are no such facilities in Toombs County. OPINION 67-176 (Unofficial) May 16, 1967 This is in response to your letter of May II, requesting an opinion on the following question: "Can the County Commissioners \:gaily pay the Democratic Executive Committee funds with which to defray the expenses of holding a run-off in the primary election which occurred last fall?" 225 Ga. Code Ann. 34-1009 provides as follows: "The expenses of a primary shall be paid by the political party holding such primary; except that the expenses of providing polling places on public premises and electors lists shall be paid by the respective counties." Thus, the Code provides the extent to which the counties may participate in defraying the expenses of conducting primaries; to wit: The county may pay the expenses of providing polling places on public premises and electors lists. Moreover, Article VI I, Section IV, Paragraph I (Ga. Code Ann. 2-570 I) of the Constitution provides that the General Assembly shall not have the power to delegate to any county the right to levy a tax for any purpose, except those enumerated in said paragraph. That provision of the Constitution contains nothing which would authorize the county to make payments to the Democratic Executive Committee. OPINION 67-177 (Unofficial) May 17, 1967 You request advice concerning the legal authority of the Georgia Department of Public Health to implement two motions passed at the April meeting of the State Board of Health, to-wit: I. That the Georgia Department of Public Health provide for the installation of signs on the U. S. and State highways leading into communities with approved fluoridated water systems designating that such community systems _have been approved by the Georgia Department of Public Health. 2. That the Department determine whether or not the State Board of Health through rules and regulations can require insurance coverage on local hospital facilities. In answer to your first question, I feel that the provisions of the following sections of the 1964 Health Code clearly delineate the authority and powers of the State Board of Health relative to such a procedure. I. Under the provisions of Section 88-108 of the Georgia Code the Georgia Department of Public Health is created and 226 established to safeguard and promote the health of the people of this State and is empowered to employ all legal means appropriate to that end. This provision of the Georgia Code provides that "illustrating without limiting the foregoing grant of authority, the Department is hereby empowered to: (b) Forestall and correct physical, chemical and biological conditions that, if left to run their course, could be injurious to health; (g) Promote the prevention, early detection and control of problems affecting the dental health of the citizens of Georgia. It is additionally provided under the provisions of Section 88-110 of the Code of Georgia that manifestly, no legislative body can foresee or cope with all situations and conditions, which, if not promptly checked, would militate against the health of its constituents. Therefore, the Georgia Department of Public Health is authorized and directed by and through its board to adopt and promulgate rules and regulations to effect prevention, correction and abatement of such situations and conditions. It is additionally provided that such rules and regulations must be adapted to the purposes intended and be within the purview of the powers and duties imposed upon the Health Department by this Code. As the installation of signs on the U. S. and State highways stating that the local f1uoridated water supply system had been approved by the Georgia Department of Public Health would not in reality affect the prevention, correction and abatement of situations and conditions, which, if not promptly checked, would militate against the health of the constituents of the community, it is, therefore, my opinion that such installation is not within the purview of powers granted to the State Board of Health. In answer to your second question as to whether or not the State Board of Health could by rule and regulation require all hospitals and related institutions to carry adequate insurance, I feel the question propounded is answered by the provisions of Ga. Code Ann. 88-1902 and 1903. These sections provide, inter alia, that the Department of Public Health shall have the power and authority to make and promulgate reasonable rules and regulations for the protection of the health and lives of patients of institutions and to by rule and regulation set up the kind and quality of building, equipment, facilities and institutional services which institutions as 227 defined in the Act shall have and use in order to properly care for their patients. It, therefore, is my opinion that as the requirement of carrying adequate casualty insurance is a matter which does not pertain to the protection of the health and lives of patients in institutions nor to the kind and quality of building, equipment, facilities and institutional services that institutions shall have and use in order to properly care for the patients, that the Board could not legally pass a valid rule requiring institutions as defined under Ga. Code Ann. Ch. 88-19 to carry adequate casualty insurance. OPINION 67-178 (Unofficial) May 17, 1967 You wrote regarding the future employment status of University System professors who may be forcibly detained behind the Iron Curtain. As I understand the situation, two professors have received permission from several East European countries to conduct studies therein. They are nevertheless fearful of arrest and detention while in such countries and will not undertake such studies if detention would cause them to forfeit the emoluments of their office with the University System. Insofar as I have been able to determine, the only legal restriction against paying salaries to persons in the above-described circumstances is the Constitutional prohibition against gratuities (Ga. Const. Art. VII, Sec. I, Par. II; Ga. Code Ann. 2-5402). Whether the foregoing prohibition would apply in this case would depend upon facts, such as the terms of the contracts with the professors, not now in my possession. However, I think it may be said that if such contracts contemplate that the study trips abroad are a part of the professors' duties and are sponsored by the University System with the understanding that, due to the risks involved, salaries will be continued if the professors are unlawfully incarcerated; and if the sponsorship of such study trips is in exchange for some consideration such as a requirement that such professors teach in the University System for a given number of years; then no gratuity would be involved. If, on the other hand, the professors are undertaking such studies 228 purely for their personal benefit, knowing that such activities may prevent them from performing their contract to teach for a given academic year; then their failure to teach would constitute a breach of contract terminating any further obligations of the Regents. OPINION 67-179 May 19, 1967 You wrote concerning rebuilt motor vehicles under the Motor Vehicle Certificate of Title Act. You ask whether the Act requires the cancellation of the manufacturer's identification plate and existing Certificate of Title and retitling the vehicle under the salvage provisions of the Act when a wrecked vehicle which was subject to the salvage provisions of the Act is rebuilt and sold to an innocent purchaser who is furnished an apparently valid title by the seller. Section 20 of the Motor Vehicle Certificate of Title Act, as amended (Ga. Laws 1965, pp. 264, 265; Ga. Code Ann. 68420a), provides in part that "An owner who sells or in any manner disposes of a velricle as wreckage or salvage, or who scraps, dismantles or destroys a vehicle, shall within 72 hours mail or deliver the certificate of title to the [State Revenue] Commissioner for cancellation along with the manufacturer's serial plate from all vehicles which were manufactured less than five years prior to the then current model year. A certificate of title shall not again be issued except upon application containing the information the Commissioner requires .... No person shall purchase, acquire in any manner, or possess, except as herein provided, a certificate of title or, as to vehicles which were manufactured less than five years prior to the then current model year, a manufacturer's serial plate, for a vehicle which has been sold or disposed of as salvage or wreckage or a vehicle which has been scrapped, dismantled or destroyed." This Section requires retitling procedures only after the manufacturer's serial plate and title have been turned in to the State Revenue Commissioner. That portion of Section 20 of the Act, which makes it unlawful for a person to possess a manufacturer's serial plate or certificate of title for a vehicle which has been sold or disposed of as salvage or 229 wreckage applies only to those persons who acquire the vehicle when it is wreckage or salvage. A person who buys the vehicle which was subject to the salvage provisions after it has been repaired or rebuilt is not violating this provision by possessing the serial plate or title. This provision may be enforced by bringing criminal charges against those who willfully fail to comply with it in accordance with Section 31 of the Motor Vehicle Certificate of Title Act (Ga. Laws 1961, pp. 68, 88; Ga. Code Ann. 68-431 a). OPINION 67-180 May 19, 1967 You have inquired as to whether the Georgia Historical Commission, an agency of the State, is empowered to enter into an agreement with a private corporation to install and maintain a mercury light on a piece of land owned by the Commission which contains a battlefield monument. The Commission is authorized by law to expend its funds in a variety of activities related to the promotion of Georgia's history. (Ga. Laws 1961, pp. 782, 792, Ga. Code Ann. 40-811 (a)) While the obtaining of an outside light is not specifically mentioned, the expressly authorized actions, i.e. the erection of a museum, clearly allows by implication the envisioned agreement. Ibid. Therefore, I am of the view that the Georgia Historical Commission may enter into the outside lighting agreement with the Douglas County Electric Membership Corporation referred to in your letter. OPINION 67-181 (Unofficial) May 23, 1967 You requested an opinion as to whether the Council is authorized to employ a full-time executive director and a clerical secretary. Ga. Laws 1966, p. 330 specifies that the Council consist of one representative from each of the following State Departments: Game and Fish Commission, Forestry Commission, Parks and Georgia Soil and Water Conservation Commission, plus two representatives each from the University of Georgia and a private 230 college or university as chosen by the Georgia Association of Colleges. Section 4 of the Act prescribes that "the representative of the Department of State Parks shall be the Secretary and Executive Officer of the Council, and the State Parks Department shall be the administrative agent of the Council." Since it is provided by statute that the representative of the Department of State Parks is to serve as Executive Officer, the Council would be precluded from hiring an executive director. With regard to the employment of a full-time secretary, section 5 of the Act provides that the Department of State Parks or any other State Department which has a member on the Council shall, if so requested by the Council, provide stenographic and clerical services for the preparation of minutes and reports. It appears, therefore, that the legislative intent was to furnish clerical services from existing State personnel. This interpretation is supported by the method in which funds have been allocated to the Council by the General Appropriations Act of 1967. The $20,000 appropriated to the Council is listed under the Department of State Parks as "Operating Expenses," rather than "Personal Services," with the proviso that the funds be used for the "expenses" ofthe Council. Since funds may not be expended for purposes other than those specified in the budget and since the Council's funds have been appropriated for expenses, rather than personal services, it is my opinion that the Council may not employ a full-time secretary. OPINION 67-182 May 24, 1967 You ask whether local school systems may legally expend school funds to purchase uniforms for non-instructional personnel. In subsequent conversation you said that examples of noninstructional personnel would be such employees as janitors, bus drivers and school lunchroom personnel. The applicable law, of co~e, consists of those provisions of the State Constitution, i.e. Article VII, Section II, Paragraph I (2) [Ga. Code Ann. 2-5501 (2)] and Article VII, Section IV, Paragraph I (3) [Ga. Code Ann. 2-5701], and Ga. Code Ann. 32-942, 231 which prohibit the expenditure of school Tunds for non-educational purposes. The test, in other words, is whether the expenditure is one which can reasonably be said to be made for an "educational purpose." Unfortunately this test, while easy to state, is not always so easy to apply. What constitutes an "educational purpose'' is a question upon which educators, lawyers, judges as well as others could, would and do disagree. The matter is further complicated by the fact that the concept of what is an "educational purpose" is not static. Most everyone would agree that matters which would not have been considered necessary or even incidental to the educational process fifty years ago, when the schools were more rigidly limited to "reading, writing and arithmatic," are today an integral part of public education. To illustrate, courses in which a student may earn credits toward graduation now include such subjects as music, band, art, vocational skills, etc. Moving to the question of the use of school funds to buy uniforms or other articles of clothing, there can be no overall yes or no answer. It would seem clear that uniforms or clothing reasonably required for or incidental to a course of instruction in the public schools, such as laboratory courses in chemistry, shopwork or other vocational courses would be a proper expenditure. At the other end of the spectrum, it is equally clear that uniforms for extra-curricular activities, such as football uniforms, would not be a legal expenditure. In a more difficult "in-between" situation this Office rendered an official opinion on March 9, 1964 to Dr. Claude L. Purcell, then State School Superintendent, stating that the use of school funds to purchase uniforms for a school band would be legal where the band was an integral part of the school's educational curriculum (E.g. where the band members earned credit towards graduation in band courses taught during regular school hours and as a part of their education performed as a band at concerts, etc.), but not legal where the band was merely an extra-curricular activity. Applying the above stated test of whether the expenditure is reasonably necessary or incidental to the providing of education in the public schools to the non-instructional personnel you mention, it would seem that the question is whether the uniforms could be said to be reasonably necessary or incidental to the performance by such personnel of their jobs in support of public education. Inasmuch as the school lunch program is financed by county funds 232 raised for this purpose and not from the general school fund (the operation of such program not being an educational purpose) it would seem quite clear that school funds could not legally be used to purchase uniforms for school lunch personnel. While the situation is less clear respecting such personnel as school bus drivers and janitors, it would be my thinking that the courts would more likely than not hold that these expenditures too are not reasonably necessary or incidental to the providing of an education to pupils in the public schools and hence would constitute an illegal expenditure of the public school fund. OPINION 67-183 May 24, 1967 You requested my opinion as to whether purchases of tangible personal property by the Georgia Building Authority (formerly known as the State Office Building Authority) are subject to the Georgia sales tax. According to the Act creating the Authority, Ga. Laws 1951, pp. 699, 712, "the Authority shall be required to pay no taxes ... upon its activities in the operation or maintenance of the buildings erected or acquired by it . . . ."Therefore, any purchases made by the Authority in the operation or maintenance of its buildings are, in my opinion, exempt from taxation under the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, pp. 36087; Ga. Code Ann., Ch. 92-34a), as amended. OPINION 67-184 May 24, 1967 You made reference to an amendment by the 1967 General Assembly (Act No. 489) to the Cosmetology Law and posed the following question: Will it be necessary for students and apprentices who register with this Board and receive a certificate of registration at no fee to pay a $5.00 renewal fee on or before December 31, of each year and also a reinstatement fee of $5.00 if the renewal is received after December 31? Prior to the 1967 amendment, Section II of the Cosmetology Law as found in Ga. Code Ann. 84-4411 provided, in part, as follows: 233 Every such person desiring to so learn said occupation shall file with the Joint-Secretary, State Examining Boards, a statement in writing showing his or her name, the place of his employer or instructor, and shall pay to said secretary a fee of $4, and said applicant shall receive a certificate of registration showing the capacity in which he is permitted to practice said occupation. The 1967 General Assembly amended the above-provision by Act No. 489, Section 2, by striking from Section 11, the following clause: and shall pay to said Secretary a fee of four ($4.00) dollars, ... Thus, the above amendment, in effect, eliminated the reference to any fee required of a student learning cosmetology. Your reference to the renewal and reinstatement fee is founded upon Ga. Code Ann. 84-4413 which provides, in part, as follows: Certificates of registration issued under the provisions of this Chapter shall be renewed on or before the 3 Ist day of December of each year by the holder of same, paying to the Joint-Secretary, State Examining Boards, a renewal fee of $5 . . . . Upon failure to renew such certificate of registration, it shall stand automatically revoked and the holder shall be disqualified until all fees to date of application for reinstatement shall be paid. Upon failure to so renew such certificate of registration, it shall be automatically revoked, and the holder of same shall be disqualified until application for reinstatement shall be made, and a reinstatement fee of $5 paid to the Joint-Secretary State Examining Boards. When interpreting legislation, the cardinal rule of statutory construction is that a statute must be construed so as to effectuate the intent of the legislature. Stroud v. Doolittle, 213 Ga. 32, 36 ( 1957). In order to ascertain this legislative intent one must view the law as it originally existed, the evil with which the new law deals and the remedy attempted by the new law. Moore v. Baldwin County, 209 Ga. 541, 545-546 (1953) and Ga. Code Ann. 102102(9). Thus, with the above principles in mind, it will be recalled that prior to the 1967 amendment a cosmetology student was required 234 to pay a fee upon receiving a student certificate of registration and presumably had to renew it and pay a renewal fee, or a reinstatement fee if he did not renew in time. The 1967 amendment eliminated the $4 fee for the original student certificate of registration. It appears that the legislature wished to alter the law so as to remedy an evil; i.e., the requiring of a student to pay a registration fee. If this were the legislative intent, certainly the legislature did not intend for the student to have to turn around and pay a renewal or reinstatement fee. Additionally, it will be noted that Section 4 of the 1967 amendment provides that "all laws and parts of laws in conflict with this Act are hereby repealed." Surely, the requirement of a renewal or reinstatement fee is in conflict with the spirit and purpose, if not the letter, of the 1967 Act. Therefore, your question is answered in the negative. It is my opinion that a student cosmetologist does not have to pay a renewal or registration fee. Of course, Ga. Code Ann. 84-4413 will continue to apply to registered cosmetologists. OPINION 67-185 May24, 1967 You asked whether a judge may change a sentence imposed pursuant to Ga. Code Ann. 27-2506(b) to a sentence of probation and a fine under Ga. Code Ann. 27-2506(a) more than one year after imposition of the original sentence. A judge may impose misdemeanor punishment according to the provisions of either Subsections (a) or (b) of Ga. Code Ann. 272506. Such sentences are subject to suspension or probation, but, a sentence imposed under Subsection (b) "shall not be subject to suspension or probation wholly or partially upon the payment of a fine either directly or indirectly . . . "Ga. Code Ann. 27-2506. A judge imposing a sentence "shall retain jurisdiction to amend, modify, alter, suspend or probate sentences imposed under (a) at any time . . ." Ga. Code Ann. 27-2506. You will observe that the court retains jurisdiction to modify a sentence imposed under Subsection (a) by virtue of the statute, but that the same act is silent insofar as a judge's authority to modify a sentence under Subsection (b), at a subsequent term of court, is concerned. A superior court, as a general rule, has plenary power over its 235 judgments "during the term at which they were rendered, and may amend, correct or revoke them for the purpose of promoting justice." Gobles. Warden v. Hayes, 194 Ga. 297,300 (1942). Despite the general rule that a court is without authority, at a subsequent term to modify a sentence imposed at a former term, a convicted person may be sentenced at a subsequent term where the original sentence is void. Heard v. Gill. Warden, 204 Ga. 261 (1948). See also Long v. Stanley. Warden, 200 Ga. 239 (1946). It further appears that a court may, at a subsequent term, correct a sentence erroneously entered at an earlier term. Pulliam v. Jenkins, 157 Ga. 18 (1923); Wyatt v. State, 113 Ga. App. 857 (1966); Sawyer v. State, 112 Ga. App. 885 (1966). Modifying a sentence at a subsequent term to correct an error is not to be confused with a change in a sentence at a subsequent term where there has been no erroneous entry of a sentence. In a case dealing with modification of a sentence at a subsequent term, and after receipt in the trial court of the remittitur from the appellate court, the Supreme Court held: "Where one accused of a misdemeanor was convicted, and at the term at which the trial took place was sentenced to serve a term in the chain-gang, and the accused carried the case by writ of error to the Court of Appeals, where the judgment of the lower court was affirmed, the trial court was without authority at a subsequent term, upon making the judgment of the appellate court the judgment of the trial court, to modify and change the sentence formerly imposed; and where he did pass an order modifying and changing the sentence, such order was void, and the court was without jurisdiction to alter the sentence originally imposed." Porter, Solicitor General v. Garmany, SherUJ, 148 Ga. 261 (1918). Nor may a trial court alter a sentence at a subsequent term of court before the remittitur from the appellate court is received. Shaw v. Benton, 148 Ga. 289. Based upon the foregoing decisions of the Supreme Court of Georgia, it is my opinion that a trial court has no authority to alter a sentence at a term of court other than the term in which it was imposed, except in those instances in which the General Assembly has expressly provided for such modification, or in those instances in which an erroneous sentence is to be corrected. 236 According to the provisions of Ga. Code Ann. 27-2506, a sentencing court retains jurisdiction "to amend, modify, alter, suspend or probate sentences imposed under (a) at any time. . ." Thus, it appears that a court may modify a sentence imposed pursuant to Ga. Code Ann. 27-2506(a) at any term of court. The original Statewide Probation Act (Ga. Laws 1956, p. 27) provided, in part, in Section 8 that: "Any court of this State which has original jurisdiction of criminal actions, except juvenile courts, municipal courts, and courts of ordinary where the defendant in a criminal case has been found guilty upon verdict or plea, or who has been sentenced upon a plea of nolo contendere, except for an offense punishable by death or life imprisonment, may, at a time to be determined by the court, hear and determine the question of the probation of such defendant." In 1957, the Court of Appeals held that the language of the Statewide Probation Act, which I have just quoted, did not alter the rule that a trial court may not modify a sentence in a criminal case after the term during which it was imposed. Phillips v. State, 95 Ga. App. 277 (1957). In 1958, the General Assembly added to Section 8 of the Statewide Probation Act the following: "The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of said probated sentence, and such judge is hereby empowered to revoke any or all of said probated sentence, rescind any or all of said sentence, or in any manner deemed advisable by said judge to modify or change said probated sentence at any time during the period of time originally described for the probated sentence to run." Ga. Laws 1958, pp. 15, 20 (Ga. Code Ann. 27-2709). It appears, then, according to the 1958 amendment, that where an original sentence included probation, that the sentencing judge may alter the probated sentence at any time during the period of time originally prescribed for the probated sentence to run. In 1964, however, the Legislature specifically provided that punishment imposed pursuant to Subsection (b) of Ga. Code Ann. 27-2506 is not subject to suspension or probation "wholly or partially upon the payment of a fine either directly or indirectly . . ." Ga. Laws 1964,pp.485,486. 237 As I have previously indicated, it is my opinion that a sentence may not be altered at a subsequent term of court in the absence of statutory authority, except in those instances in which errors are corrected. Although Ga. Laws 1958, pp. 15, 20 provides that the sentencing court may modify a probated sentence at any time while such probated sentence is running, the latest expression of the General Assembly relating to the suspension or probation, upon payment of a fine, of a sentence imposed pursuant to Ga. Code Ann. 27-2506 (b) is found in the 1964 amendment. It is my opinion that an original sentence imposed pursuant to Ga. Code Ann. 27-2506(b), regardless of whether it contained a probation provision, may not be altered after the term at which it was imposed so as to include the payment of a fine. I believe the treatment given to your first question makes it unnecessary to respond separately to your inquiry concerning the terms of court. OPINION 67-186 (Unofficial) May 24, 1967 You ask if the amendment to Article VII, Section IV of the Constitution of Georgia of 1945 (Ga. Laws 1966, p. 1066, ratified November, 1966) has changed the principle that taxes levied for a specific purpose must be used for such purpose. Article VII, Section IV, Paragraph I of the Constitution of Georgia of 1945, as amended, provides that unless otherwise provided by law no levy need state the purpose for which levied nor shall the taxes collected be allocated for any particular purpose unless expressly provided by the General Assembly. However, it is provided in Ga. Code Ann. 92-3801 that the order levying taxes must specify the per cent levied for each purpose, and in Ga. Code Ann. 92-3708 that taxes raised for a specific purpose must be used for such purpose. Neither of these code sections were repealed by the General Assembly after ratification of the above constitutional amendment and hence should be complied with. In Butts County v. Jackson Banking Company, 136 Ga. 719 ( 1911 ), the Court, in headnote 4, stated as follows: "When, out of a fund raised by taxation for a specific purpose, all demands and indebtedness properly chargeable against 238 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." See Spain v. Hall County, 175 Ga. 600,603 (1932). You also inquire about the disposition of funds collected in excess of the amount required to pay the principal and interest of a bonded indebtedness. Article VII, Section VIII, Paragraph I of the Constitution of Georgia (Ga. Code Ann., 2-610 I) provides, in part, as follows: "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 otl the principal and interest of such bonded indebtedness thereafter maturing. "The funds in such sinking fund shall be kept separate and apart from all other moneys of such county, municipality or subdivision and shall be used for no purpose other than that above stated...." I suggest that you discuss the above matters with your County Attorney. OPI~ION 67-187 (Unofficial) May24, 1967 You requested an opinion with respect to recent amendments to Ga. Code Ann. 59-l 06 and 59-1 12 relating to the revision of jury lists. As you are probably aware, this office IS authorized to render official legal opinions only to the Governor and the departments of State government. The views expressed in this letter must, therefore, be accepted as unofficial. 239 You first inquired as to whether you would be jn conformity with the law if you revise the jury list once every two years. Ga. Code Ann. 59-106 as amended, provides inter alia: "Immediately upon the passage of this Act and thereafter at least biennially, or, if the judge of the superior court shall direct, at least annually...the board of jury commissioners shall compile and maintain and revise a jury list. ..." You would, therefore, be in compliance by revising the list every two years provided the judge of the superior court does not direct that it be revised annually. Your second question asks if voters who are 18 years of age would be eligible for jury duty or if they should be at least 21. Ga. Code Ann. 59-106 requires the jury commissioners in com posing the jury list to " ...select a fairly representative cross-section of the up-right and intelligent citizens of the county from the official registered voters' list which was used in the last proceeding general election . . . ." Since 18 year olds are eligible to vote (Ga. Code Ann. 2-702 and 34-602), of course, their names are on the voters' list and in my opinion are eligible to be chosen as jurors provided they are upright and intelligent citizens. I call to your attention, however, that a citizen must be above the age of 21 years to be qualified to serve as a grand juror (Ga. Code Ann. 59-201). I further point out that the fact that a juror is under 21 years of age constitutes a legal challenge for cause in felony cases. See Ga. Code Ann. 59-804(2). OPI:\ii0:\1 67-188 (Unofficial) May 24, 1967 You requested an unofficial opiniOn as to whetht:r a clit:nt of yours. Allied Business, Inc., must register undt:r the Georgia Securities Act as a dealer in securities. According to the information enclosed in your request as well as some information subsequt:ntly furnished to me, Allied Businesses, Inc. (hereinafter referred to as Allied), purchases, for cash, Scotch whiskt:y in Ireland and England. A certificate of ownership is then issued by the seller to Allied, and an insurance policy is obtained by Allied through Lloyd's of London. The seller of the whiskey then issues a directive to the warehouse storing the whiskey to deliver to 240 the order of Allied that amount of whiskey purchased. The whiskey is then stored in barrels identifiable by numbers and names in bonded warehouses in Ireland and Scotland. Allied proposes to sell this whiskey to individuals in Georgia, and perhaps elsewhere, who will pay for their purchases in cash and who will receive certificates of ownership from Allied for the particular numbered barrels purchased. Allied then, according to the information furnished, will issue a directive to the warehouse to transfer those certain barrels to the order of the purchaser, and the warehouse will then issue a transfer warrant acknowledging the transfer of ownership of those barrels from Allied to the new purchaser. It is my understanding that these transfer warrants do not constitute a title, but merely are documents of the record of the transfer. After allowing the whiskey to age, these individual purchasers will sell the whiskey, which they have purchased from Allied, to bottlers and blenders of Scotch whiskey in England and Scotland. I assume that these individuals give the bottlers or blenders some indication of the transfer of ownership and issue a transfer order to the warehouse so as to enable the bottlers to obtain their purchases. In regards to registration under the Georgia Securities Act, Ga. Code Ann. 97-105 provides that: No dealer, limited dealer, salesman or limited salesman shall offer for sale or sell any securities within or from this State, except in transactions exempt under Section 6, unless he is registered as a dealer, limited dealer, salesman or limited salesman pursuant to the provisions of this section. Thus, Allied is required to register as a dealer in securities if it ". . . offer(s) for sale or sell(s) . . . securities . . ." which are neither exempt nor the subject of an exempt transaction. A security is defined in Ga. Code Ann. 97-102(i) as follows: "Security" shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of indebtedness, investment certificate, certificate of interest or participation, certificate of interest in oil, gas or other mineral rights, collateral trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate or beneficial interest in title to property, profits or earnings, or any other instrument commonly known as a security, including any guarantee of, 241 temporary or interim certificate of interest or participation in, or warrant or right to subscribe to, convert into or purchase, any of the foregoing. "Security" shall not mean any insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed number of dollars either in a lump sum or periodically for life, or some other specified period. Therefore, if the certificates of ownership of the whiskey come within the above statutory definition of a security, or if the transaction is of such a nature that, taken as a whole, the same falls within one of the various transactions defined as a security, then Allied would be required to register as a securities dealer. This question has not been considered by a Georgia Court, so it is necessary to look to other jurisdictions. The only case which appears to hold that whiskey warehouse receipts are not securities and thus not within a state securities act is Mutual Bankers Co. v. Terrell, 130 Fla. 583, 178 So. 399 (1938), wherein the court reversed a lower court order enjoining the sale of whiskey warehouse receipts as being in violation of the Florida Uniform Sale of Securities Act. The court stated that (178 So., at 401): The appellee has cited no authority for the stated conclusion that the bonded warehouse certificates constitute securities within the purview of those legislative acts. Such bonded warehouse certificates as are here involved constitute evidence of title to personal property, in this case the title to whiskey contained in certain numbered barrels stored in the bonded warehouse issuing such certificates. The title to the whiskey is transferred by the assignment and transfer of the certificate, and that assignment transfers the title to no whiskey except that which is in the container identified by the number thereof in the certificate. It is interesting to note that Florida amended its definition of a "security" a year after the Terrell case so as to expressly include therein a "Whiskey Warehouse Receipt", Fla. Stat. Ann. 517.02(1) and Fla. Laws 1939 c. 19190 I, thus indicating that the Florida legislature considered that such transactions should be registered as securities. In Unger v. State, 231 Wis. 8, 284 N. W. 18 (1939), the Wisconsin Supreme Court held that it did not have sufficient 242 information concerning transactions which involved whiskey warehouse receipts to uphold a conviction for failure to register under its securities act. The court concluded by stating that: It may well be that some scheme whereby other documents were used in connection with the warehouse receipts might have destroyed the legal status of the warehouse receipts and in connection with other documents, it might conceivably constitute a security . . . . This additional information was supplied to the court in Unger v. State, 237 Wis. 318, 296 N. W. 629 (1941 ), and the court held that the transaction was within the securities act since with each warehouse receipt sale " . . . there was delivered a guaranty by the defendants to deliver to the holder of the receipt at his option at the end of six months another warehouse receipt for an equal amount of 'green' whiskey and a specified amount of cash." Ibid. ln the second Unger case, the court based its decision on the inducement afforded by the warehouse receipt in connection with the guaranty and a pamphlet used in the sale of the receipts which made reference to the warehouse receipt as a "real investment". The court also found that the pamphlet represented that " ... 'ultimate security of . . . [thef original investment' was impliedly assured." Id. at 630. Although Allied does not issue a specific guaranty, the materials used to induce the purchase of the receipts and the general offer by Allied to repurchase any of the whiskey warehouse receipts, in my opinion, requires that the Unger rationale be applied to Allied. This rationale has been followed by other courts whereby transactions involving warehouse receipts have been found to be securities. See SEC V. Bourbon Sales Corp., 47 F. Supp. 70 (W.D. Ky. 1942); United States v. Carter & Co., Inc., 56 F. Supp. 311 (W.D. Ky. 1944); and Penjleld Co. of Cal. v. Securities and Exch. Com'n, 143 F. 2d 746 (9th Cir. 1944). These cases found that the transactions which utilized warehouse receipts constituted "investment contracts" under the Securities Act of 1933. Each of the above cited cases was decided over 20 years ago. Since that time the courts have expanded the definition of securities and those transactions which fall within the statutory definitions so as to effectuate the purposes underlying the various acts regulating securities. It is for this reason that it is my opinion that your client, Allied Businesses, Inc., is selling "securities" and must register in accordance with the Georgia Securities Act of 1957. 243 According to the materials which Allied uses in the sale of these whiskey certificates of ownership or warehouse receipts, the investment principle is emphasized with charts showing the " . . .net profit average in percentage of grain purchased and then sold after a period of 2, 3 and 4 years." Additionally, statements are made as to the world market for Scotch whiskey and the increase in its consumption. Finally, as an added inducement to make an investment in whiskey, Allied offers, at no charge, certain services. Those services, as stated in Allied's literature, consist of information on how to make a capital investment of Scotch whiskey, advice as to when and how to sell such investments, and a general offer by Allied to purchase any whiskey which an individual has purchased from Allied. Additionally, Allied offers to arrange for bonded storage and insurance and makes a general offer to, upon request, give individuals information by letter, phone or personal visits. In SEC v. W J. Howey Co., 328 U. S. 293, 298 (1946), the United States Supreme Court stated that an "investment contract" under the Securities Act of 1933 means ". / .transaction . . . whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party." Additionally, Howey, supra, states that "form (is) . . . disregarded for substance and emphasis (is) . . . placed upon economic reality." Id. at 298. Thus, it does not matter whether the certificate of ownership is technically a warehouse receipt, because the substance of the transaction must determine whether there is a requirement for registration under the securities law. Howey placed emphasis on the promise or expectation of future profits. Today courts are placing additional emphasis on the risk that the buyer runs in regard to this initial investment. In Silver ralls Country Club v. Sobieski, 55 Cal. 2d 811, 361 P. 2d 906, 13 Cal. Rptr. 186 ( 1961 ), a promoter sold memberships in a country club and used the proceeds to complete construction of the club. The only profit the purchaser received was the use of club facilities when completed. The California Court held that the risk factor was a characteristic of a security. A Georgia Court apparently has also adopted the view that the risk factor can be of importance. In Strauss v. State, 113 Ga. App. 90 (1966), the Georgia Court of Appeals held bogus money orders not to be exempt negotiable instruments but to be evidence of indebtedness, and thus "securities." 244 In reference to this problem Attorneys General have issued opinions as to whether whiskey warehouse receipts constitute securities under their particular securities acts. Approximately an equal number of the Attorneys General have concluded that these whiskey warehouse receipts were securities as have concluded that the receipts were not securities. See CCH Blue Sky L. Rep. Section 1715. Therefore, it is my opinion that your client, Allied Businesses, Inc., is engaged in the marketing of securities as same are defined in the Georgia Securities Act. The sale of these certificates of ownership coupled with the materials used as inducements to purchase and the services offered, albeit free, lead me to view the total transaction as within the definition of a "security" under the Georgia Securities Act of 1957. Whether the transaction be called an "investment certificate" or an "investment contract", there appears to be no avoiding the fact that Allied is marketing an item which causes a person to invest his money in a common enterprise at a risk in expectation of future profits which are due solely to the efforts of some other person or the speculative nature of the whiskey market. The purpose of the Securities Act is to protect the general public who often are unable to obtain information concerning investment matters, by requiring minimal information in regards to the items sold to the public. For this purpose to be fulfilled, Allied should be of record in the office of the Securities Commissioner. Additionally, although you did not pose the question as to whether these instruments had to be registered, on the basis of the facts furnished to me, it is my opinion that under Ga. Code Ann. 97-104 these securities should be registered in order to comply with the Georgia Securities Act of 1957, as amended. OPINION 67-189 (Unofficial) May 25, 1967 You requested an unofficial opinion as to whether the Georgia Art Commission, in attempting to further the promotion and development of the arts in Georgia, is authorized by law to expend State funds for the purchase of "works of art," for the subsidizing of theatrical productions, or to otherwise support the arts by grants to individuals or groups. It appears that the Commission 245 contemplates engaging in activities of this nature under programs or projects which would be eligible for federal matching funds under the National Foundation on the Arts and Humanities Act of 1965 [P.L. 89-209]. An appropriation of State funds to meet federal matching requirements for the proposed programs and projects is set forth in Section 7 of the recent General Appropriations Act. See Ga. Laws 1967 pp. 41, 45. OPINION The Georgia Art Commission, created by Ga. Laws 1964, pp. 678-682, was created for the sole purpose of rendering advice to the Governor and other State officials on art and aesthetic matters. Under the statute of its creation it has a strictly advisory function and the Commission is without legal authority to disburse State funds for the purchase of "works of art,'' the, subsidizing of theatrical productions, or to disburse any State funds whatsoever for the purpose of supporting artists or art projects or programs, however worthy. DISCUSSION The statutes creating the Georgia Art Commission make it abundantly clear that the Commission was created (and_js intended) to function solely in an advisory capacity regarding the arts. Section I of the Act [Ga. Code Ann. 40-260 I] declares the Act's purpose to be: " ...to create a Georgia Art Commission composed of capable, representative members from the field of art and aesthetics to advise the State on art and aesthetic matters, including but not limited to, paintings, sculptures, murals, tablets, and monuments, which are the property of the State, the design and visual appearance of State buildings and grounds, and the appearance of highways and parks... , and to advise the State on ways and means to promote the development of the arts in Georgia." (Emphasis added). Similarly, Section 5 [Ga. Code Ann. 40-2605], in specifying the duties of the Commission, states that it: " .. .shall advise the Governor and other State ojjicials concerning works of art becoming the property of the State whether by gift, purchase or otherwise, and shall render advice on the location, disposition and evaluation of works of art. It shall. .. make recommendations as to the relocation, 246 removal. .. of such works of art. It shall make recommendations relative to encouraging and promoting the arts and art organizations in Georgia...." (Emphasis added). While similar indications of the strictly advisory capacity and powers of the Commission are also contained in other sections of the Act, suffice it to say that no authority whatsoever is contained therein relating to such matters as the Commission itself purchasing "works of art," subsidizing theatrical productions, or otherwise disbursing State funds for the direct fiscal support of art or artists. The powers of public officers, boards, commissions are defined by law in this State. See Ga. Code Ann. 89-903. It is well settled that where the law creates an office, board, commission, etc., it has no authority to perform any act not legitimately within the scope of the authority declared by or reasonably implied from such law. E.g. Conners v. Vandiver, 215 Ga. 371 (1959); Cole v. Foster, 207 Ga. 416,418 (1950); Boykin v. Martocello, 194 Ga. 867,870 (1942). While the activities contemplated by the Georgia Art Commission are undoubtedly worthy, they are not authorized by statute. Nor is the difficulty one which could be remedied by an executive order of the Governor for the simple reason that this office too is one which is defined by law, and such an order or proclamation, if contrary to the statutes creating the Commission, would itself be invalid. See e.g. 81 C.J.S. States, 60 pp. 982, 984. Indeed the matter is one which would raise serious constitutional questions even if the Georgia Art Commission Act were to be amended in an attempt to permit the Commission to carry out its proposed projects. Any grant by the Commission to an individual artist or to a private group (e.g. a theatrical group) which amounted to a subsidy would seem to be questionable under the constitutional prohibitions of gratuities (see Ga. Code Ann. 25402) and joint ownerships, including the loan of State credit (see Ga. Code Ann. 2-5604). In addition, there might be some difficulties under the constitutional provisions set forth as Ga. Code Ann. 2-550 I, which specify the particular purposes for which the State may levy taxes. There is no provision permitting the State to levy taxes for support of the arts per se. Hence it would be necessary that any disbursement, even if the statutes should be amended to so permit, be tied to item number two, "educational purposes," or item eight, promotion of the State's "recreational resources." OPINION 67-190 May 26, 1967 You wrote concerning the shipment of surplus properties from federal installations to warehouses operated by the State Agency for Surplus Property pursuant to Public Law 81-152 (which Act authorizes the distribution of surplus federal property, through such state agencies, to schools, hospitals and civil defense units). You state that the State Agency for Surplus Property, which was created by and is operated by the State Board of Education under the authority vested in said Board by Ga. Code Ann. 32-653, currently contracts with licensed common carriers for the shipping of such surplus properties. You further indicate, however, that consideration is now being given to the Agency doing its own hauling on its own trucks. One consideration involved in such plan is the matter of liability insurance. Consequently you ask for an official opinion as to whether the State Department of Education, either by itself or acting through the State Agency for Surplus Property, may legally purchase liability insurance to cover the proposed trucking operations of the Agency. My opinion and the reasons therefor are as follows: OPINION It would not be legal for the State Board of Education, whether acting directly or through the State Agency for Surplus Property, to purchase liability insurance in connection with the Agency's trucking of surplus properties from federal installations to its own warehouses on its own trucks. DISCUSSION It is axiomatic that the powers of public officers and boards are limited to those defined by law, Ga. Code Ann. 89-903, and that in the absence of an express, or at the very least of a necessarily implied power to do so, public officers cannot pay out public funds. See e.g. Cole v. Foster, 207 Ga. 416, 418 (1950); Freeney v. Geoghegan, 177 Ga. 142(1) (1933). I am unaware of any statute granting express authority to the State Board of Education to purchase (whether by itself or through the State Agency for Surplus Property) liability insurance respecting either the transport of surplus property or any other 248 vehicular activity .1 The question is therefore reduced to one of whether such power can reasonably be said to be implied from any express grant of power. An example of such an implied power is that which has generally been considered to exist respecting the purchase of property insurance on property owned by or under the custody and control of a State Department or Agency. See 47 Am. Jur. Schools 73; 100 A.L.R. 600, 602 "Insuring Public Property." The reasoning behind this implied power, however, is that the power to manage and control property entrusted to a State Department or Agency must necessarily include a power to protect such property and save the Department, Agency and State from substantial economic loss due to fire, storm or other like damage or injury to the same. But this rationale is manifestly inapplicable to liability insurance covering vehicular activities of the State Department of Education or State Agency for Surplus Property. Both are instrumentalities of the State. In Georgia, as many other jurisdictions, the doctrine of "sovereign immunity" precludes the possibility of a tort action against the State or its agencies. E.g. Peters v. Boggs, 217 Ga. 471 (1961); Ramsey v. Hamilton, 181 Ga. 365 (1935) [the few statutory exceptions which exist not being applicable here]. No "protection" against economic loss to the Department, Agency, or the State through tort liability can be said to exist in the face of such immunity from suit and I therefore conclude that the right to purchase liability insurance cannot be said to be a power which could be implied as being reasonably necessary to the Agency's exercise of its express power to act for the State in matters pertaining to the acquisition of surplus property. To the same effect, see Op. Att'y Gen. 1957, p. 116. I. Ga. Code Ann. 56-2437 authorizes all counties, municipalities and other political subdivisions of the State to purchase liability insurance covering motor vehicle injuries. If the county or other subdivision elects to purchase the same, it waives its sovereign immunity from suit to the extent of the coverage and limits of the insurance policy. No similar general provision exists respecting State vehicles. 249 OPINION 67-191 May 29, 1967 As I understand the facts, Mr. Greer received a one-year sentence on August 2, 1965. On August 4, 1965, he posted a supersedeas bond and was released. On January 19, 1966, a notice of appeal was filed in the Georgia Court of Appeals. On April 15, 1966, Mr. Greer was arrested by federal authorities for a federal violation and was lodged in the Muscogee County jail as a federal prisoner where he remained until May 12, 1966, when he was picked up by a deputy U.S. Marshall. However, on May 9, 1966, the remittitur from the Court of Appeals was received by the clerk of the Muscogee County Superior Court indicating that the judgment of the Superior Court of Muscogee County was affirmed. Mr. Greer is now confined in the Atlanta Federal Penitentiary and is due for immediate release to the Georgia Penal System as a result of a detainer filed against him. The question you pose to this Department is: "Does the one-year sentence imposed in the superior court begin to run on May 9, 1966, the date the remittitur was received by the clerk of the lower court, or does the sentence begin to run from the date that he is delivered back into the Georgia Prison System upon his release by federal authorities?" Ga. Code Ann. 27-2505 (Ga. L. 1931, p. 165, as amended) deals with the time from which sentences run. Ga. Code Ann. 272505 provides that a sentence shall begin to run from the date of the sentence provided the defendant is confined in jail or otherwise incarcerated. However, should the defendant appeal his case to the proper appellate court, the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the trial court, provided the defendant was not at liberty under bond but was incarcerated or in custody of the sheriff of the county where convicted. Although it would appear from the given factual situation that that portion of Ga. Code Ann. 27-2505 which deals with the computation of a sentence from the date of remittitur would be applicable, a review of Murphey v. Lowry, 178 Ga. 138 (1933) would indicate otherwise. There the court said at p. 140: "It would seem that only one or an initial sentence was in contemplation by the legislature, and that in case of a plurality of sentences, only the first was intended to be affected by the statute." 250 Therefore, construing Ga. Code Ann. 27-2505 in its most favorable light, it would therefore appear "That the term of service under such sentence shall be computed as from the date of sentence, provided the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending . . ." (Ga. Code Ann. 27-2505). Even though Mr. Greer was in the Muscogee County jail from April 15, 1966, until May 12, 1966, it was not by virtue of any action of the State but rather was by initiative of the federal authorities nor could such action by the federal authorities have been contemplated by the sentencing court. Therefore, Mr. Greer's first sentence would begin to run when he is "confined in jail or otherwise incarcerated" as a result of the first sentence as "it is presumed that the sentence did not provide for its commencement before entry of the [defendant] into the [prison system]. Dixon v. Beaty, 188 Ga. 689, 690 (1939) It is therefore my official opinion that Mr. Greer's obligation to his state sentence is not fulfilled until he is released from the federal authorities and returned to the State Penal System to begin the unexpired portion of his state sentence. Note, however, that Mr. Greer should receive credit towards the total computation of his sentence for the two days he spent in the Muscogee County jail between August 2, 1965, and August 4, 1965, when he was released under bond as the sole purpose of Code Section 27-2505 "was to give a defendant credit for time involuntarily spent in jail after sentence" and before delivery into the penitentiary. Murphey v. Lowry, supra, pp. 140, 142. OPINION 67-192 May 29, 1967 You pose the following question: "Does the present law give a contractor who has a contract with the State, the right to haul over axle and over gross loads of gravel, sand and/or other material over Georgia State and Federal Highways other than roads under construction by that contractor?" Ga. Code Ann. 68-405, as amended, contains a proviso as to the size and weight load limits on vehicles on State roads. Said proviso reads in part as follows: " ... Provided further, however, that any vehicle, on which 251 State and county ad valorem taxes have been paid, of a contractor who has a contract with the State Highway Department for the construction or maintenance of a road or highway may exceed the weight and length limits provided in this section, when used in connection with such contract, without the necessity of obtaining a special permit herein required." The issue here is what is the legal interpretation of the following words of said proviso: " . . . may exceed the weight and length limits provided in this section, when used in connection with such contract. .." (Emphasis Added) In regard to the construction of statutes in this State, Ga. Code Ann., Sec. 102-102(9) reads as follows: "The following rule shall govern the construction of all statutory enactments: ''(9) In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. Grammatical errors shall not vitiate, and a transposition of words and clauses may be resorted to when the sentence or clause is without meaning as it stands." The cardinal rule governing the construction of statutes is to carry into effect the legislative intent and purpose. (Gazan v. H eery, 183 Ga. 30 (1936) ). It is apparent that the Legislature, in passing this Act was interested in promoting safety on the highways and protecting the existing highways of this State. The State Highway Department is vested with the authority to enforce the statutory restrictions as to the weights and sizes of motor vehicles. (Ga. Code Ann., 68-406.1). A statute must be construed with reference to the whole system of which it forms a part. (McDouglas, Adm'x. v. Dougherty, 14 Ga. 674(5) (1854) ). It is further shown that a construction of an exception or a proviso in a statute will not be applied that will enable an individual to evade the force and intent of the Act as a whole. (Bishop v. Sanford, 15 Ga. I (1854) ). From the above, it is apparent that the contractors, who have contracts with the State Highway Department for the construction 252 and maintenance of a highway, may exceed the weight and size limits only when the vehicle is being used in connection with the construction or building of a State highway. This by no means gives a contractor carte blanche to violate the laws of this State merely because he has a contract with the State Highway Department most of the time. In order for the exception to apply, where the vehicle was being used other than on the road under repair or construction, it would seem that the vehicle must certainly he within a reasonable distance from the project on which it was being used and have a reasonable and rational basis for exceeding the weight and size limits. It was certainly never the intent of the Legislature, by this exemption, to permit contractors to destroy other highways in this State while they are engaged in a contract with the State Highway Department for pecuniary gain. Whether or not this exception will be continued in the law by future Legislatures is purely a matter of conjecture, but it would certainly seem to this writer that the State Highway Department, when entering into a contract with a contractor for repairs or construction of a roadway, should impose definite limitations and restrictions on the contractor concerning the conditions upon which he will be allowed to exceed the weight and size limit imposed by law in connection with a particular construction project. This note was addressed to Mr. Chambers, but this writer feels that this is such an important matter and this provision of law has been subject to such great abuse throughout the State, that I have taken the liberty of personally answering same. OPINION 67-193 (Unofficial) May 30, 1967 You wrote concerning certain problems you have had with the disposition of "detainers." Before answering your inquiries, it is necessary to define "detainer." A detainer is a legal fiction. That is to say, it does not exist as a matter of law in this State nor is it subject to any prescribed rules of definition. A detainer is a writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named. 26A C.J.S. Detainer. 253 I turn now to your specific inquiries: I. Who may legally file a detainer? Inasmuch as a detainer has no legal authority as its basis, it is difficult to determine who may "legally" fill such a document. However, it is the practice in Fulton County, for example, that the sheriff, upon proper presentation of a warrant for an accused's arrest, shall seek to locate the accused and if it is determined that the accused is incarcerated outside of the sheriff's custody, the sheriff may then issue a "detainer." Therefore, in response to your inquiry, the public authority charged with the apprehension of the accused may "legally" file a detainer. 2. What ojjicial, ifany, is legally authorized to determine the validity of the detainer requested? Inasmuch as a "detainer" has no legal justification, then "legally" any recipient of the detainer is authorized to honor or not honor the request. It is a generally accepted practice however that most detainers are honored for the same reason that an issuing source in this State would want its detainer honored in a siser state. "The warrants do not have extraterritorial effect legally to detain; but 'by courtesy extended by almost all penal institutions in the country, the warden will furnish accurate information as to the date when the term expires to the wanting authorities, who can then make their own arrangements to obtain custody upon the defendant's actual release.' " Rubin, The Law of Criminal Correction, p. 421, 1963. No official is "legally" authorized to determine the validity of the detainter but any official who has it within his authority to restrain or release one who is incarcerated may determine whether he wishes to honor the detainer or not. 3. Must detainer requests he accompanied by a warrant or a certtjied copy oja sentence? The answer to this inquiry must again be prefaced with the proposition that inasmuch as a detainer has no legal justification, it must be realized that there are no formal requisites. I believe it would be good practice that the communication which requests the "detainer" or "hold" be accompanied by a warrant or a certified copy of the sentence. Then if the receiving authority should wish to question the legality of either document, it may then be pursued. 4. When an inmate is penaliud in his rehabilitation ejjorts by the continuance of a detainer which no longer has legal iusttjication, what are his legal recourses? Quite clearly, if one is being held past the time of his existing sentence solely because of a 254 detainer, he may contest his ex1stmg confinement by a writ of habeas corpus. The granting of such a writ would result in his immediate release. If the accused is already incarcerated in this State and there exists a "detainer" against him from some authority in this State, the accused may make a demand for trial and if the demand is properly made, the accused must then be tried when the demand is made or at the next succeeding regular term of court. Failure to try the accused shall result in his discharge and acquittal of the offense charged in the indictment. Ga. Code Ann. 27-190 I. It is difficult to determine what a prisoner's legal recourses are where he has been penalized in his rehabilitation efforts by a continuance of a detainer which no longer has legal justification for there is no way that the Board or this office can determine whether the detainer has legal justification. Of course, an inquiry directed to the requesting authority might well reveal whether or not the warrant is still outstanding but this still would not provide an inmate with a legal recourse. There does exist an "Agreement on Detainers" which has been ratified by several states and which would seem to provide a remedy to the inmate for the clearing of detainers. Your attention is directed to "The Handbook of Interstate Crime Control" published by the Council of State Governments, Chicago, Illinois, revised edition August 1966, pp. 91-118, which discusses the aforementioned "Agreement on Detainers." It would thus appear that an inmate has no legal recourse if he has been penalized in his rehabilitation efforts as it is not a function of the Board of Pardons and Paroles to determine the legal justification of the detainer; but it must be borne in mind however that the Board is under no obligation to honor a detainer which it feels is without legal justification or which the Board has determined is without legal justification. OPINION 67-194 (Unofficial) May30, 1967 You wrote requesting our interpretation of certain sections of the law regulating outdoor advertising adjacent to Interstate and Primary Systems of Highways. 255 You ask us to define Section 2 (i) (2) and Section 3 (f). We believe both of these sections are self-explanatory, but must be construed together with all other applicable portions of this law. Section 2 (i) (2) defines a business area which is not zoned for commercial or industrial activities, but which constitutes an unzoned commercial or industrial area that is used for or occupied by one or more commercial or industrial activities, or an adjacent area which is located within the approaches to an incorporated municipality under conditions contained in Section 3 (j) ofthis Act. Outdoor advertising devices, agricultural, forestry, ranching, grazing, farming, and related activities shall not be commercial, industrial, marketing or mercantile activities for the purpose of this definition. It thus appears that, in addition to the language contained above, an unzoned commercial or industrial area would also include an adjacent area which is located within the approaches to incorporated municipalities, as specified in Section 3 (f). You ask the question "If a road does not have an intersection in an incorporated town, but passes within its city limits, does Section 3 (f) apply?". The answer to this question is "Yes, an intersection within an incorporated municipality would have nothing to do with the situation". You ask "1 f a road does not intersect any part of incorporated boundaries of a city does 3 (f) apply?". The answer to this question is "No, 3 (f) would not apply". A highway must actually intersect or go through a portion of the incorporated boundaries of a muncipality for this section to apply. The key words, we believe, are contained in Section 2 (i) (2); "or an adjacent area which is located within the approaches to an incorporated municipality under conditions contained in Section 3 (f) of this Act." (Emphasis ours) Thus, I would say that the word "approaches" means, as used in this subsection, a road or street that traverses at least a portion of the incorporated boundaries of a municipality. You then ask the question "Is the distance measured from city limits or from intersection of roadways within a city'?". We assume this question relates to Section 2 (i) (2) and Section 3 (t). This being the case, the distance is measured from the intersection of a roadway to the city limits. Here again, in my judgment, the word "approaches", in Section 2 (i) (2) is a key word. Your next question pertains to Section 3 (a) and you ask "Will 256 signs be permitted in area defined in Section 2 (i) and/ or Section 3 (d) (e) (f), and if they do fall under above condition which has preference?". Section 3 (a) deals with directional and other official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historic attractions, as authorized or required by Iaw, and which comply with regulations which shall be promulgated by the Director of State Highway Department relative to the lighting, size, number and spacing thereof. Such signs would, of course, be permitted in an unzoned commercial or industrial area, as defined by Section 2 (i) (2). Section 3 (d) deals with signs, displays and devices located in zoned industrial or commercial areas under authority of law. Section 3 (e) deals with signs, displays and devices located in unzoned commercial or industrial areas, which areas shall be determined from actual land uses. We have already discussed Section 3 (f). The entire Section 3 deals with limitations of outdoor advertising devices. I would say that the official signs permitted by Section 3 (a) would have preference over those permitted by Sections 3 (d), (e) and (f) because the latter are subject to the regulations as to size, spacing and lighting in Section 4, whereas those permitted under Section 3 (a) are not subject to Section 4 of the Act. Moreover, directional and other official signs must necessarily be placed in any areas as determined to be in the best interest of the traveling public for safety and convenience. Your next question deals with Sections 4 (a) and 4 (b) and you ask, "What agency will establish the criteria, the State Highway Department or advertising?". These subsections deal with the minimum and maximum size and lighting. The State Highway Department will establish and determine the standards and criteria to cover these subsections. It is not necessary for the minimum and maximum size to be shown on a permit. However, I would say that this would be a good policy. Please keep in mind that it is going to be necessary for the Highway Department to promulgate rules and regulations in order to implement this Act. Sections 4 (a) and (b) are two examples. Your next question deals with Section 4 (d), inter-alia, which provides that all locations within an unzoned commercial or industrial area, as defined in Section 2, shall be within 3,500 feet in the case of an adjacent area along the interstate system, or 2,100 feet in the case of an adjacent area along the primary system. In answer to your first question on this section, I would say that 257 activities [see Section 2 (a)] can be on a crossroad or intersection. In order for Section 4 (d) to apply it would make no difference whether there was an interchange. These distances should be measured parallel to the roadway instead of airline distance. The distance from the advertising activities is spelled out in Section 4 (d), 3,500 feet in the case of interstate system and 2, 100 feet in the case of the primary system. Please bear in mind here that Section 3 (f) is subject to and must yield to Sections 4 and 5 of this Act. As to your question about out-of-State attraction advertising within the State, the Act is silent. However, out-of-State advertising must comply with Section 4, especially Section 4 (d). Devices, advertising, and out-of-State attractions would be subject to the same limitations and rights as other lawful advertising devices. Our State law would have no effect whatsoever beyond the Georgia State boundaries. Your next group of questions deals with Section 6 - "Permits", in which you ask two questions, "(a) Can signs be erected before January I, 1968, if they comply with the law in regard to location and spacing?". The answer to this question is '''Yes". This section prescribes that on or after January I, 1968, no signs shall be maintained without a permit from the Highway Department. Therefore, the Highway Department cannot require permits until that time. "(b) Will signs that were in place as of the effective date of this law be required to obtain permits? If so, is there a discrepancy?". The answer to this question is "Yes". If there is a discrepancy it must yield to the requirements for permits, which is mandatory as far as this law is concerned. However, there is some doubt as to what actions the department may take if an advertising company refuses to apply for a permit for those signs in place as of the effective date of the law. As to Section 8 of the Act, you ask the following question: "Can the State proceed at this time to remove those signs that were in place on the effective date of this Act which are not in conformance with the provisions of this Act?". The answer is "No". They may continue to be maintained until July I, 1970, but may not be replaced (except advertising copy) or relocated. See Section 7 of the Act. However, the Highway Department may prevent new signs from being erected unless they comply with size, location, lighting and spacing, and unless they fail to obtain a permit. The owners of new advertising devices, that is; which are attempted to be erected 258 after the effective date of this Act, would not be entitled to compensation. Those advertising devices which must be removed on July I, 1970, will be entitled to the compensation as specified in Section 8 of the Act. Your next question is as follows, "We have had several requests for permits to erect signs and we propose to give letters if proposed sign is over 500 feet from another sign. What do we do if there is not 500 feet from another sign?". I assume you have reference to Section 4 (c) (iii), which provides that all signs erected and maintained in business areas shall conform to certain standards with respect to spacing: "Within a business area, which does not meet the requirements of subdivisions (i) or (ii), which is on the interstate system, no location shall be within 500 feet of another location on the same side of the highway". If these signs were in existence on the effective date of this Act they will be allowed to remain until January I, 1970. The sign that was in place on the effective date would have preference. I do not think that you would have authority under this Act to issue a permit for a new device which is within 500 feet of another location. If there were two or more signs in existence on the effective date of the Act, both would be entitled to permits and, as stated, they could remain until January I, 1970. At that time one of them would have to come down. It would be difficult to say which one in this latter case would have priority. It would probably be the one first erected. If the owner desires to have the device remain after January I, 1970, it may well be that in this situation one of the owners would be satisfied with compensation. Thus, it would be a matter of negotiation. The effective date of this law was April6, 1967. OPINION 67-195 (Unofficial) May 30, 1967 You requested information concerning an Illinois charitable organization which you represent and which may solicit funds in Georgia by mail. In particular you requested information in regards to the Georgia regulations applicable to solicitation by mail. For your information and use, please find enclosed two (2) copies 259 of a pamphlet entitled "Regulation of Professional Fund Raising". I believe that you will be able to answer all of your questions concerning this matter from the material in this pamphlet. Of particular interest I would call your attention to Section 2 which states that "(a) Every charitable organization, except as otherwise provided in Section 3, which intends to solicit contributions from persons in this State by any means whatsoever shall, prior to any solicitation, file with the department upon forms prescribed by it, the following information:" (Emphasis supplied). Therefore, unless you conclude that your client is exempt from the regulations for some reason contained in Section 3, a registration must be filed prior to solicitation. Enclosed also for your use are two (2) sets of registration forms which should be completed and returned to the Hon. Ben W. Fortson, Jr., Secretary of State, if you desire to register your client. Additionally, for your information these regulations are also found in Ga. Code Ann. 35-1001 to 1011 (1933). OPINION 67-196 (Unofficial) May 30, 1967 You wrote concerning the question of whether or not adoption of the ordinance of the City of Atlanta, approved September 8, 1966, relating to the City's sewerage system, violates the prohibition against enactment of a sales 'tax by a municipality. As you, apparently, are aware, counties, municipalities and other political subdivisions of the State are expressly prohibited by Section 25 of the Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, pp. 360, 387; Ga. Code Ann., 923446a) from enacting a sales tax. Therefore, if the ordinance levies a sales tax, it is invalid. However, having carefully studied its provisions, I am of the opinion that it does not impose a tax but merely makes a charge for use of the sewerage system of the City of Atlanta. This is borne out by the following provisions of the ordinance: (a) Those who do not use the system are not required to pay the charge; (b) Those who use the system must pay the charge, although 260 they obtain water from a source other than the City of Atlanta; (c) Those who use the system and who have sewage with a strength greater than normal strength are required to pay a surcharge. Moreover, in anticipation of the ordinance, the Mayor and the Board of Aldermen adopted a resolution, approved December 20, 1965, creating a Sewer and Water Revenue Fund, to which all sewer and water revenues are now credited and all operating costs and debt requirements of the sewerage and water systems are now charged. With the adoption of the ordinance, sewer service was put on the same basis as water; those who receive it pay for it. No part of the revenue from this source is used for the general operation of the city government. I assume, from reading your letter, that your concern as to whether the ordinance imposes a sales tax on the sale of water stems from the fact that the normal monthly charge for sewer service during the eight-month period from October through May, inclusive, is equal to one-half a person's water bill and during the four-month period from June through September, inclusive, is equal to the average water bill for the eight-month period. This fact does not make the charge a tax on the sale of water; it simply means that, normally, there is a direct relationship between the amount of water a person uses and his use of the sewerage system. This being so, it is only logical for the sewer service charge to be expressed in terms of the cost of water. It should be noted that, in summer months, when there is an increase in water consumption without a corresponding increase in use of the sewerage system, because of lawn-watering, etc., the sewer service charge is, relatively speaking, less. While the characterization given to an exaction by a governmental body making the exaction is not determinative of its nature, Gunby v. Yates, 214 Ga. 17 (1958), I am of the opinion, in this instance, that the ordinance correctly characterizes the exaction as a service charge and not a tax. "A tax is an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered." (Emphasis supplied) ld. at 19. OPINION 67-197 261 May 31, 1967 You requested my official opinion as to whether or not an insurer engaged in the business of writing ocean marine insurance may, through its agent, solicit ocean marine insurance within the State of Georgia and enter into contracts of ocean marine insurance within the State of Georgia without having first obtained a Certificate of Authority to transact insurance. Ga. Code Ann. 56-302 prohibits an insurer from transacting insurance in Georgia except as authorized by a subsisting certificate of authority, except as to such transactions as are expressly otherwise provided for in the Insurance Code. Four exceptions are enumerated here, none of which are applicable to the question presented. Ga. Code Ann. 56-105 defines the word "transact" with respect to insurance to include solicitation as well as effectuation of a contract of insurance. Ga. Code Ann. 56-60 I prohibits representation of unauthorized insurers in this State except under certain circumstances, one of which is surplus lines insurance. See Ga. Code Ann. 56-613 thru 56-628, which are designated by the Code as the "Surplus Lines Insurance Law." The provisions of this law do not apply to ocean marine insurance, however. [Ga. Code Ann. 56-627 (!)]. None of the remaining exceptions enumerated in Ga. Code Ann. 56-60 I apply to the solicitation of and effectuation of ocean marine insurance contracts. Although the Insurance Code exempts ocean marine insurance from regulatory provisions relating to counter-signature of agents (Ga. Code Ann. 56-320 (2) (d)), limit of risk (Ga. Code Ann. 56-412 (6) ), authorized reinsurance (56-413 (4) ), rates (Ga. code Ann. 56-502 (b) (2)), anti-compact law (Ga. Code Ann. 56712 (2) ) and policy forms (Ga. code Ann. 56-240 I (3) ), there is no prov1s1on exempting an ocean marine insurer from the requirement of obtaining a certificate of authority before transacting insurance in this State. Since the solicitation by an insurer through its agent of ocean marine insurance and the effectuation of ocean marine contracts in this State constitute the transaction o( insurance for which a 262 certificate of authority is required, it is my opinion that your q1.1estion must be answered in the negative. It may be argued that it was not the intent of the General Assembly to require ocean marine insurers to be licensed in this State in view of the number of exceptions relating to this type insurance as enumerated herein. It could hardly be argued, however, that it was the intent of the General Assembly to permit an unauthorized ocean marine insurer to transact insurance in this State free of all licenses and taxes to which licensed companies are subject. There would seem to be no effective method of collecting premium taxes which are imposed by Ga. Code Ann. 56-1303 from a non-admitted company. Premium taxes on surplus lines insurance business placed in unlicensed insurers pursuant to the surplus lines law is collected from licensed surplus lines brokers who broker this business. (Ga. Code Ann. 56-623). Additionally, Ga. Code Ann. 56-108 exempts certain types of insurers, not including ocean marine insurers, from all of the provisions of the Insurance Code. If it had been the intent of the Legislature to exempt ocean marine insurers, it is my opinion that this would have been the logical provision in which to do so and having not done so, did not intent to extend such an exemption. I am not unmindful that the conclusion reached in this opinion has the effect of restricting the placing of ocean marine insurance in this State since the surplus lines law does not apply to this coverage. This is a matter, however, which addresses itself to the General Assembly as I am unable to conclude that it was intended that a licensed company, in competition with unlicensed companies for ocean marine business, must pay premium taxes while the unlicensed company operates free of taxes. OPINION 67-198 (Unofficial) May 31, 1967 You wrote regarding a publication entitled "Our Christian Heritage," and asked whether or not The Public Relations Institute with which you are connected would be entitled to obtain an authentic list of the parents of newborn children from the Georgia Department of Public Health. I regret to advise that under the current provisions of Georgia 263 law, more particularly, Ga. Code Ann. 88-1723 and 88-1724, you will be unable to obtain such records. These two code sections provide, inter alia, that records of births and deaths can be given only to the official organ or newspaper of a county for publication and that full certified copies of birth certificates may be issued only to the following: ( l) the person whose record of birth is registered; (2) either parent of the person whose record of birth Is registered; (3) the legal representative of the person whose record of birth is registered, and (4) the superior court upon its order. There is additional persuasive language to furnish copies of such data to the National Vital Statistics Division for national statistical purposes. I can only suggest as a possibility that you contact the official county newspapers in each of the 159 counties of Georgia as they may be in a position to furnish you such a list. OPINION 67-199 June 5, 1967 You have requested my official opinion as follows: "I respectfully request an Official Opinion of the Attorney General as to whether a corporation organized in Georgia and still holding its Georgia charter is liable for the minimum license tax or the full amount based on total net worth even though the corporation is doing no business in Georgia and owns no property in this State." The tax imposed by Ga. Code Ann. 92-240 I is imposed upon "all corporations incorporated under the laws of Georgia, except those that are not organized for pecuniary gain or profit . . . ."As such, it is a corporate franchise tax upon the privilege of being incorporated. The tax is graduated according to the net worth of the corporation. This office has previously ruled that a Georgia corporation is liable for the tax even if it does not engage in business and its only 264 activity is to secure the corporate charter. Op. Att'y Gen. 1957, p.282; Op. Att'y Gen. 1933-34, p.443. This office has also ruled that a Georgia corporation is liable for the tax when it in fact engages in business even though the business loses money and the corporation is operating at a deficit. Op. Att 'y Gen. 1935-36, p. 280. ln the event that a Georgia corporation conducts its business entirely outside of Georgia, such a corporation would nevertheless be subject to the corporate franchise tax upon its entire net worth. Corpus Juris Secundum states this proposition as follows: "Thus the [corporate franchise] tax is due and payable as long as the corporation is in existence; and it is not material that the corporation does not have any property physically in the state or that its principal office is in another state." (Emphasis added) CJS Taxation, 134 at page 266. Accordingly, it is my official opinion that a corporation organized under Georgia law is liable for the corporate franchise tax even though the corporation is doing no business in Georgia and owns no property in this State. Such a corporation would be subject to the tax based on its entire net worth. Ga. Code Ann. 922401, as amended. l have been unable to locate the opinion dated July 23, 1945, that you referred to. OPINION 67-200 (Unofficial) June 6, 1967 You ask for my opinion concerning the sale of distilled spirits by either a city or county in Georgia. The Supreme Court of Georgia in the case of O'Neal v Town of Whigham, 206 Ga. 511 (1950), held that in the absence of a law permitting a municipality to engage in the business of selling beer that the ordinance permitting such business undertaking would be void. While we are not dealing with the sale of beer, beer is an intoxicating beverage, and the rule would seem to be the same. l have examined the provisions of Ga. Code Ann. Ch. 58-10, and I am unable to find any provision therein which would authorize either a county or municipality to become engaged in the sale of distilled spirits. 265 The Supreme Court, in the case of Atlanta v. Henry Grady Hotel Corporation, 220 Ga. 249 (1964), held that a pecuniary interest by a municipality in the sale of distilled spirits is not conducive to the proper exercise of the police power necessary for a successful regulation and control of the liquor business. The Court stated at page 257: "The combination of power to license and pecuniary interest in the liquor business creates a conflict of interests which can only result in abuse of the power to license and a breakdown in the regulation and control of liquor ...." Based on these authorities and a review of the pertinent Code Sections, it is my opinion that neither a municipality or a county may have a pecuniary interest in the operation of any establishment selling distilled spirits. OPINION 67-201 June 7, 1967 You requested my official opinion as to whether the Board of Trustees of the Employees' Retirement System of Georgia is empowered to provide for payments into the System under certain circumstances by named beneficiaries. It is the basic rule of law in Georgia that an administrative regulation must be based on and serve to implement a legislative enactment and it can never be in contradiction to its legislative authorization. Bohannon v. Duncan, 185 Ga. 840 (1938); Crawley v. Seignious, 213 Ga. 810 (1958); Cravey v. Southeastern Underwriters Association, 214 Ga. 450 (1958). In the case of the regulation in question, the applicable provisions of the Act establishing the Legislative Retirement System specify that the contributions to the System for the period of 1954 to 1966 must be made by the individual members and "member" is not defined by law as including "named beneficiary". Ga. Laws 1967, pp. I, 6. Therefore I am required for this reason to conclude that the resolution of the Board of Trustees of the Employees' Retirement System of Georgia passed on May II, 1967 is not validly based on the applicable provision of the Act of the General Assembly establishing the Legislative Retirement System and hence cannot stand. 266 OPINION 67-202 (Unofficial) June8, 1967 You requested information concerning the disposal of certain records of your office. Additionally, you inquired as to whether it would be possible to store such records in an unlocked storage room if same could not be destroyed. Your attention is called to Ga. Code Ann. 24-2714 and 242715 which contain the duties of the clerks of the superior courts of Georgia. As you will note many specific records are required to be kept by the clerks of the superior courts. Additionally, Ga. Code Ann. 24-2715 (10) provides that it is also the duty of the clerks of the superior courts: To keep all the books, papers, dockets and records belonging to his office with care and security, and the papers filed, arranged, numbered and labeled, so as to be of easy reference: Provided, however: (a) That clerks of the superior court are authorized, from time to time, to destroy books containing records of instruments conveying personal property only, including bills of sale, mortgages, conditional sales contracts, retention title contracts, and bills of sale to secure debt, which records are over 15 years of age; and (b) Every clerk of the superior court or city court is, from time to time, authorized to destroy original pleadings which have been recorded in the minutes or writ books in the court, in every civil case except cases involving divorce, titles to land, legitimation of a child or children, and proceedings for adoption, that has been finally terminated for 20 years or more. You will note that the above section requires the clerk "to keep all the books, papers, dockets and records belonging to his office . . ." and not just those instruments which are "of record" in his office. Therefore, in answer to your first question it is my opinion that the law does not provide for the destruction of any records or papers of your office except those expressly provided for by subsections (a) and (b) of Ga. Code Ann. 24-2715. In answer to your second question concerning the storage of your records which cannot be destroyed, your attention is called to 267 Ga. Code Ann. 24-2714 ( 1) which provides that it is the duty of the clerks of the superior court: To keep their offices and all things belonging thereto at the county site and at the courthouse. In order to insure the safe storage of records where space at the courthouse is not available, the clerk may cause said records to be stored at some place in the county: Provided said place is not more than five miles from the courthouse and provided the clerk has the written permission of the official governing body of the county and the superior court judge of the county and provided further that public notice be given of the place of storage. Therefore, it is my opinion, that you cannot store your records which cannot be destroyed in an unlocked storage room for such would not " ... insure ... [their] safe storage ..." as required by the above section. OPINION 67-203 (Unofficial) June 8, 1967 You wrote for advice as to the availability of a legal method by which the Council for the Preservation of Natural Areas might set up a full-time office staff. Reference is made to my previous opinion on this matter dated May 23, 1967, wherein it was stated that the Council had neither the authority nor the funds to employ such a staff. It is axiomatic that the State or one of its organs, such as the Council, cannot do indirectly that which it cannot lawfully do direct. Agricultural Commodities Authority v. Balkcom, 215 Ga. 107 ( 1959); State Ports Authority v. Arnall, 201 Ga. 713 (1947). It is, therefore, my opinion that there is no lawful method by which the Council may employ a full-time staff or expend funds to procure personal services. OPINION 67-204 (Unofficial) June 8, 1967 You requested certain information concerning the enforcement of the law which regulates dealers in used motor vehicle parts. In reference to this law you particularly inquired as to the parties charged with its enforcement. In Ga. Code Ann. 84-4601 thru 4619 the General Assembly provided for the registration and regulation of all who are either 268 dealers in used motor vehicle parts, a motor vehicle dismantler, a motor vehicle rebuilder or a salvage yard operator. However, the General Assembly did not appropriate funds for the creation, formation or function of the State Board of Registration for Dealers in Used Motor Vehicle Parts which is charged by the abovereferred law with its administration. Therefore, since there is no board with which to register or to administer this law, the answer to your question is that, at present, no one is charged with the enforcement of this law. In your letter you also requested information in regards to the safety inspection laws. In particular you inquired as to the party charged with the enforcement of this law in reference to used car dealers. Pursuant to Ga. Code Ann. 68-1726.6 provision is made that: After July I, 1965, no dealer engaged in the business of selling new or used motor vehicles shall sell at retail any vehicle required to be inspected by this article [ 68-1723 through 68-1726.6] unless the dealer shall have said vehicle inspected in accordance with the provisions of this Article and a current official inspection certificate is obtained for said motor vehicle and placed thereon. Furthermore, Ga. Code Ann. 68-9926 provides as follows: It is unlawful and, unless otherwise declared in this law [Chapters 68-15 through 68-17; 68-9926, 68-9927] with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this law. This public safety law is enforced by the Georgia State Patrol pursuant to Ga. Code Ann. 92A-239 which provides as follows: It shall be the primary duty of the Uniform Division of the Department of Public Safety to patrol the rural and public roads and highways throughout this State, to prevent, detect and investigate criminal acts, and to arrest and apprehend those charged with committing criminal offenses appertaining thereto, and to safeguard the lives and property of the public. Therefore, in answer to your second question it is the duty and responsibility of the Georgia State Patrol to enforce the safety inspection laws in regard to dealers of used motor vehicles. OPINION 67-205 June9, 1967 You asked my official opinion concerning the authority of the State Board of Pardons and Paroles to grant a reprieve of a 269 sentence to enable a prisoner to obtain private medical treatment. You have also requested that I determine whether or not a prisoner may be permitted to go beyond the territorial limits of Georgia to procure private medical treatments. The State Board of Pardons and Paroles has authority to grant reprieves. Constitution of the State of Georgia, 1945, Article V, Section I, Paragraph XI, (Ga. Code Ann. 2-30 II). The Constitution does not define the word "reprieve" nor does it limit the purpose for which a reprieve may be granted. The act creating the State Board of Pardons and Paroles is similarly silent. The term "reprieve" has, however, been judicially defined as merely "a temporary suspension for the period named in the respite of the execution of the sentence imposed by the court." Gore v. Humphries, 163 Ga. 106, 114 (1926). I find no impediment, either statutory or constitutional, which would operate to impair the Board's authority to grant a reprieve or to limit the purpose for which a reprieve may be granted. Accordingly, it is my opinion that the State Board of Pardons and Paroles may, in its discretion, grant a reprieve of a sentence for a specified period of time for the purpose of enabling a prisoner to obtain medical treatments outside of the confines of a state penal institution. You have also requested that I determine whether a prisoner who has been granted a reprieve may be permitted to leave the territorial limits of this State. I have been unable to find either a constitutional or a statutory provision which would prevent a prisoner who has received a reprieve from leaving this State. I find no constitutional or statutory provisions which would prevent the State Board of Pardons and Paroles from granting a reprieve,for medical purposes. when the members of the Board know that the prisoner intends to leave this State for the purpose of securing medical treatment. The State Board of Pardons and Paroles "may make rules and regulations as may be authorized by law." Constitution of the state of Georgia, 1945, Article V, Section I, Paragraph XI, (Ga. Code Ann. 2-30 II). The Board has been authorized by statute to adopt rules and regulations bearing upon all matters within the purview of the statures which it administers, provided, of course, that such rules are not inconsistent with the statutes. Ga. Laws 1943, pp. 185, 194; 1964, pp. 487, 488 (Ga. Code Ann. 77-525). The General Assembly has gone further than merely authorizing the adoption of rules; it has made specific, mandatory commands. "The Board shall adopt rules and regulations governing the granting of other forms of clemency which shall include 270 pardons, reprieves, commutation of penalties, removal of disabilities imposed by law, and the remission of any part of a sentence, and shall prescribe the procedure to be followed in applying for them." Ga. Laws 1943, pp. 185, 194; Ga. Laws 1964, pp. 487,488 (Ga. Code Ann. -77-525). Pursuant to the authority granted, and the legislative commands, the Board has adopted the following rule: "\vhen detainers are lodged against an inmate (except for instate probation supervision) or if the inmate wishes to be reprieved for the purpose of going outside Georgia, a reprieve cannot be granted. The Georgia State Board of Corrections cannot release an inmate when there is a detainer, except to the detainer. Release of an inmate to go outside of Georgia could result in this State losing jurisdiction." The foregoing rule appears on Page 21 of a publication of the State Board of Pardons and Paroles which is entitled "State Board of Pardons and Paroles, Constitutional-Statutory Provisions-- Policies, Rules and Regulations Governing Parole in Georgia." As a matter of law, it is a "settled rule that a valid administrative regulation binds the administrator himself equally with others." United States of America v. Finn, et a/., 127 F.Supp. 148, 165 (S.D. Cal. 1954). See to the same effect: United States ojAmerica ex rei. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Chapman v. Sheridan- Wyoming Company, 338 U.S. 621, 70 S.Ct. 392, 94 L.Ed. 393 (1950); Bridges v. Wixon, 326 U.S. 135,65 S.Ct. 1443, 89 L. Ed. 2103 (1945 ); People ex rei. King et a/. v. Gregory, 82 N. E. 2d 369 (Ill. 1940); Railroad Commission et al. v. Mack-Hank Petroleum Company, 186 S. W.2d 35 (Tex. 1945); John J. Lawson v. Arthur Cornelius, Jr., 231 N.Y. Supp. 2d 1014 (N.Y. 1964); Pass et al. v. Kern, 32 N.Y. Supp. 2d 979; and Hercules Powder Company v. State Board of Equalization, 208 P.2d 1096 (Wyo. 1949). It has also been determined that a rule which is made pursuant to statutory authority to carry out the purposes of an act is as binding upon the administrator as if the rule had been adopted by the Legislature. People ex ref. Burgguist et al. v. Gregory, 86 N. E. 2d 434 (Ill. 1949). The State Board of Pardons and Paroles may change its rules in the manner provided for by law under its general rule making powers. The administrator of a law is bound by his own rules so long as they are in force (G. L. Gibbons et al. v. Arizona Corporation Commission, 390 P.2d 582 (Arizona, 1964) and until the same are amended or repealed in the manner provided for by law. Kroger Grocery and Baking Company v. Flander, 77 N. E. 2d 271 921 (Ohio 1948). Once a rule has been adopted, it binds the administrator and "even though the adoption of the rule was a discretionary function, once the rule is in force the adopting agency does not have discretion to disregard it." State ex rei. Independent School District No.6 eta/. v. Johnson, 65 N. W.2d 688, 673 (Minn. 1954). It appears to have been uniformly established that a rule is binding upon the public body which promulgates the rule; that such rules are binding until they are repealed, amended, or modified as provided for by law; and that a public body may not disregard its own rules. It is my opinion that the State Board of Pardons and Paroles may not permit a prisoner to leave the State of Georgia under a reprieve order so long as that Board's own rule prohibits such practice. OPINION 67-206 June 9, 1967 Your Department requested an official ruling as to whether or not under Ga. Code Ann. 92A-605(f) and 92A-607(2) a certificate by the designated judicial officer can be executed after one year and the suspended driver's license and registration reinstated or is it necessary to wait until three years have elapsed before a certificate can be executed and the suspension withdrawn? In order to answer this question completely, these two Code sections should be first of all considered separately. First, Ga. Code Ann. 92A-607 provides three ways in which a driver may reinstate his license and registration after a suspension as provided in Ga. Code Ann. 92A-605. The driver may either deposit and file the security and proof of financial responsibility; or he may wait until three years have elapsed following the date of such suspension and then file evidence with your Department indicating that during such period no actions for damages arising out of the accident have been instituted; or he may file evidence with your Department indicating a release from liability or final adjudication of nonliability or a duly acknowledged written agreement which must comply with the provisions of Ga. Code Ann. 92A-606(4). It is to be noted that in the above-stated provisions of Ga. Code Ann. 92A-607 that subdivision 2 which provides that a driver can wait until three years have elapsed following the date of such suspension and then file satisfactory evidence with your Department that no action for damages arising out of the accident 272 has been instituted is merely an alternative method of reinstatement. It is also to be noted that in the case of the other two alternatives there is no time limit provided as a waiting period before which said driver may reinstate his license and registration. Secondly, in considering Ga. Code Ann. 92A-605(f) it is provided at the expiration of one year from the date of the accident or one year from the date of suspension, the designated official upon request of the suspended driver may check the records of the court and furnish said driver with a certificate showing whether or not there is an action at law pending or an unsatisfied judgment on file against the said operator or owner arising out of the accident which necessitated the posting of bond or security or on which the suspension was based. It is to be noted that this subdivision of Ga. Code Ann. 92A-605 is not concerned with the provisions pertaining to reinstatement. The only relation that this subdivision could possibly have with the provisions of Ga. Code Ann. 92A607 regarding the reinstatement of a suspended license and registration would be in relation to the requisites of subdivisions 2 and 3 of Ga. Code Ann. 92A-607 which require the filing of evidence satisfactory to the Director of the Department of Public Safety that no action has been disposed of in any of the other provided manners. Therefore, in construing these provisions in the above manner, it is to be concluded that the necessary certificates can be executed by the appropriate official after one year. However, that execution of such a certificate after one year would not mean that a suspended license and registration could be reinstated unless the driver had complied with the provisions of Ga. Code Ann. 92A-607, subdivisions I or 3, in other words, by either depositing and filing security and proof of financial responsibility as required under Ga. Code Ann. 92A-605 or by filing evidence satisfactory to the Department of Public Safety that said driver has been released from liability or that final adjudication of non-liability has been made or that a duly acknowledged written agreement has been made in accordance with subdivision 4 of Ga. Code Ann. 92A606. On the other hand, said driver may choose the third alternative which would be to allow three years to elapse and then file evidence satisfactory to the Director of the Department of Public Safety that no action for damages has been instituted. If this were the case, then the only relation that the provisions of Ga. Code Ann. 92A605(f) would have with the reinstatement of a suspended license and 273 registration would be that this section would provide statutory authorization to the court official to issue such a certificate. As for the reinstatement of the suspended license and registration privileges, said driver would rely on the provisions of Ga. Code Ann. 92A-607. OPINION 67-207 June 12, 1967 You ask for our official opinion as to whether you, as Governor of the State of Georgia, would be authorized to honor Ohio extradition requisitions which bear the signature of John M. McElroy, Assistant to the Governor of the State of Ohio, rather than the signature of the Governor himself. It appears that Mr. McElroy is signing Ohio requisitions in his official capacity as "Authenticating Officer for Governor James A. Rhodes." His authority to do so rests upon Ohio Rev. Code Sec. 107.15 (authorizing the Governor of Ohio to appoint an authenticating officer and to delegate authority to such officer to sign various documents for the Governor), and upon the Governor's implementing appointment of John M. McElroy as his Authenticating Officer, with power to sign various specified documents, including extradition requisitions, for the Governor. My official opinion and the reasons therefor are as follows: OPINION While the matter is not one which is free of doubt, it is my considered opinion that as Governor of Georgia, you are authorized to honor Ohio extradition requests which bear the signature of John M. McElroy as "Authenticating Officer for Governor James A. Rhodes." DISCUSSION The "Uniform Criminal Extradition Act," adopted by the General Assembly of Georgia in 1951 (Ga. Laws 1951 pp. 726 et seq.), in speaking of the person required to authenticate the extradition demand and documents in support thereof, uses the term "executive authority." The Act goes on to define the term "executive authority" as follows: "The term 'executive authority' includes the governor, and any person performing the functions of governor in a State other than this State." Ga. Code Ann. 44-402 (Emphasis added). 274 It would appear to be clear that with respect to the signing of extradition requisitions Ohio law permits the Governor of Ohio to appoint an "authenticating officer" to perform this particular function for him. Consequently, it seems to me that in answering your request, the precise legal issue is whether the underscored clause of the above quoted definition of the term "executive officer" (i.e. "any person performing the functions of governor") is to be narrowly interpreted as referring only to those situations where some individual is acting in the full place and stead of the governor (i.e. performing the governor's functions in toto, due to incapacity etc. of the governor), or whether it is also applicable to such situations as the present one, where only those functions of the governor pertaining to extradition (and perhaps other "specified" matters) are performed by another on the governor's behalf. While the apparent absence of any reported judicial decision on the point necessarily places the matter in a position of doubt, I am inclined to think that the better view is that the Act, dealing as a whole with the subject of criminal extradition, is to be construed as having reference to this same subject matter when it speaks of the "governor's functions" and "any person performing" the same. It is my view, in other words, that the language was not intended to be so narrowly interpreted as to render it applicable only in those cases where some individual is acting as governor in every sense and respect. Nor do I see any public policy which would be served by adopting such a restrictive interpretation. Quite to the contrary it would seem to me that in view of the current growth of population and governmental activity, which necessarily imposes an ever increasing burden upon State governors with respect to their time and tasks, such time saving devices as the use of facsimile signatures or duly authorized "authenticating officers" to sign routine documents cannot help but increase in the future. In concluding that as Governor of Georgia, you are authorized to honor Ohio extradition requisitions bearing the signature of John M. McElroy as "Authenticating Officer for Governor James A. Rhodes," I am not unmindful of such decisions of the Supreme Court of Georgia as Brown v. Grimes, 214 Ga. 388 (1958); West v. Graham, 211 Ga. 662 (1955); and McFarlin v. Shirley, 209 Ga. 794 (1953). In speaking very broadly of the demand and authentication by the "governor" of the demanding state as an essential to criminal extradition, these cases could arguably be said to indicate that the Supreme Court of Georgia views the terms "executive 275 authority" and "governor" as being synonymous. I think, however, that such an argument, despite its surface plausibility, is not supported by critical analysis. To start with, none of these cases involved the precise question we have here, which is whether a foreign state may validly authorize an individual to be appointed "authenticating officer," and in such capacity to sign extradition requisitions for the governor. Hence anything said by the Court is mere obiter dictum as to this question. More importantly, however, I feel that these prior cases must be read in the context of the prevailing practice whereunder it is the governor who signs the documents as "executive officer." In my 'opinion these decisions had reference to necessity of the governor's signature on those customary situations where the governor is the "executive authority" who performs this function (i.e. signing the extradition requisition), and did not reach the question with which we are here concerned. OPINION 67--208 June 12, 1967 You requested an opinion on the following question: "Where the State Scholarship Commission commits by contract a certain amount of money to a student for study during a period of one year and reserves the right to pay said sum periodically during the year and extending beyond the close of the current fiscal year, does that portion of the contracted obligation not disbursed to the student prior to July 1 next following the date of the contract grant lapse to the General Treasury of the State as of July 1 and the close of the current fiscal year?" In your letter you have submitted a xerox copy of a scholarship contract entered into on March 27, 1967, and covering the spring, summer, and fall sessions of the year 1967. As you are aware, the Constitution provides in Art. VI I, Sec. IX, Par. II (Ga. Code Ann. 2-6202) in part as follows: "(a) Each General Appropriation Act ... shall continue in force and effect for the next two ensuing fiscal years after adoption and it shall then expire except for the mandatory appropriations required by this Constitution and those required to meet contractual obligations authorized by this 276 Constitution and the continued appropriation of Federal grants. * * * "(c) All appropriated funds, except for the mandatory appropriations required by this Constitution, remaining unexpended and not contractually obligated at the expiration of such General Appropriation Act, shall lapse." Ga. Code Ann. 40-420 provides as follows: "At the end of the first fiscal year of each biennium covered by the General Appropriations Act, unless alloted by the Budget Bureau, the amount of each appropriation provided for in this Chapter, except for the mandatory appropriations required by the Constitution, remaining unexpended, and which have not been contractually obligated in writing, shall lapse and cease to be available and the State Treasurer shall not pay any unallotted appropriation and shall make the necessary adjustments in his appropriation accounts to charge off the amount of the lapsed appropriations. All appropriated funds, except for the mandatory appropriations required by the Constitution, remaining unexpended and not contractually obligated at the expiration of such General Appropriations Act, shall lapse." Based on the foregoing, it is my opinion that under the facts of your example, the funds obligated by contract executed in March of 1967 do not lapse. By letter dated June 12 from Mr. Carlton, your question has been enlarged, as follows: "Supplementing Mr. Donald E. Payton's letter of request of June 2, 1967 we request an opinion as to the following: where appropriated funds are committed by the execution of a valid scholarship contract between the State Scholarship Commission and the scholarship recipient prior to June 30, 1967, do funds thus committed or contractually obligated lapse into the General Treasury as of July I, 1967, if no funds have been advanced to such scholarship recipient by July I, 1967, and assuming that the first such advance will not be made until September 1967?" For the fiscal year 1966-67, the General Assembly appropriated 277 to the State Scholarship Commission $493,370.00 (Ga. Laws 1965, pp. 44, 59). For the fiscal year 1967-68, the General Assembly has appropriated to the Commission $824,660.00 (Ga. Laws 1967, pp. 41, 68 ). From your questions it appears that there is a sum of money not expended by the Commission from the 1966-67 appropriation. Let us assume for the purposes of discussion that that sum is $50,000.00. You have indicated that the Commission, in June of 1967, may enter into scholarship contracts for the school year commencing in the fall of 1967 and the question arises as to whether or not the funds for use under such contracts are "contractually obligated" within the meaning of the above-cited provisions of law. Let us assume further that in June of 1967, the Commission enters into scholarship contracts for the school year commencing in September of 1967 in the amount of $45,000.00. The question then becomes, is this $45,000.00 obligation to be paid out of the $50,000.00 sum which has not yet been expended, or is it to be paid out of the $824,660.00 which has been appropriated for the fiscal year 1967-68? This question must be answered in accordance with accepted State accounting procedures and thus is beyond the scope of this office. OPINION 67-209 (Unofficial) June 12, 1967 This is in reply to your request for my opinion as to whether or not the doctrine announced in Miranda v. Arizona, 384 U.S. 436, is applicable to a retail merchant or his employee when questioning a suspect at the merchant's place of business and before the imposition of restraints bylaw enforcement officers. It is my opinion that the Miranda case is inapplicable to the situation which you pose. The court held that incriminating statements may not be used when they result from custodial interrogation unless it is demonstrated that the defendant's privilege against self-incrimination has been secured. The court went on to say: "By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444. 278 The court appears to have exempted the type of situation about which you inquire when it defined custodial interrogation. OPINION 67-210 June 13, 1967 You requested an official opinion as to whether or not under the terms of the Motor Vehicle Safety Responsibility Act a discharge in bankruptcy may so effectively extinguish a judgment against the person so discharged that the Director of the Department of Public Safety may reinstate the previously suspended license and registration privileges of the person so discharged and relieve that person from the obligation of furnishing further security as evidence of his financial responsibility. The last sentence of Ga. Code Ann. 92A-605(a) explicitly provides that "an adjudication or discharge in bankruptcy shall not relieve the operator or owner from furnishing security as provided herein or from the other provisions of this act." It is my official opinion, therefore, that the language of Ga. Code Ann. 92-A. 605(a) precludes the use of a discharge in bankruptcy as a means of evading the requirements of Ga. Code Ann. 92A-605 with regards to proof of financial responsibility. In the case involving David Henry Parker, a judgment in the sum of $20,000 was returned against the defendant on March 30, 1964, and remained unsatisfied until May 28, 1965, when the defendant was adjudicated and bankrupt and this judgment was discharged. Although there may be technically, therefore, no outstanding unsatisfied judgment against the defendant, David Henry Parker, the special proviso of Ga. Code Ann. 92A-605(a) requires that he show proof of financial responsibility by virtue of the unsatisfied judgment rendered against him and discharged in bankruptcy. for purposes of the Motor Vehide Safety Responsibility Act, the discharge in bankruptcy of an unsatisfied judgment can have no effect whatsoever upon one's obligation to prove his financial responsibility in accordance with the terms of said act. An unsatisfied judgment discharged in bankruptcy is sufficient basis for the Director of the Department of Public Safety to either suspend the license and registration privileges of one who becomes subject to the requirements of the Motor Vehicle Safety Responsibility Act or to refuse to reinstate such license and registration privileged in accordance with the terms of that act. OPINION 67-2ll 279 June 14, 1967 You requested my opinion in regard to the preparation of an airport zoning ordinance for the City of Vidalia. Specifically, you have asked: "I. Is it permissible to refer to a part of a Federal Aviation Regulation rather than spell it out in the ordinance?" and "2. Is it necessary to have a clause exempting existing property in certain cases when a similar clause is in the Land Use Ordinance?" Turning to your first question, let me state at the outset that if the airport at Vidalia is or becomes such a part of interstate air commerce as to fall within the jurisdiction of the federal regulations concerning interstate air commerce, then the federal regulations would take precedence over the proposed ordinance and, therefore, it would not even be necessary to adopt such regulations by reference. If, on the other hand, the federal regulations do not apply to the Vidalia airport, then only the Georgia Airport Zoning Act, Ga. Laws 1946, p. 121, would apply. That Act requires a public hearing with notice published in the official gazettes of the affected political subdivisions as a condition precedent to the adoption, change or amendment of any airport zoning regulation. Ga. Laws 1946, p. 121, 125. Since federal agency regulations are frequently changed without the local notice required under the Georgia Act, the effect of such a change could, conceivably, invalidate that portion of a zoning act adopting by reference the federal regulations. Accordingly, I believe that those federal regulations which are desired, which do not apply by their own terms, should be spelled out in the ordinance. With regard to your second question, the Airport Zoning Act, supra provides that the provisions of an airport zoning ordinance may be incorporated in and made a part of a general zoning ordinance but that general zoning regulations shall not limit the scope of effectiveness of regulations adopted under the Airport Zoning Act, Ga. Laws 1946, p. 121, 123. Consequently, I believe that the planning commission may, if it so desires, incorporate within the general zoning regulations only 280 those changes dealing with airport zoning which are different from the existing general regulations thus preventing the duplication of regulations. OPINION 67-211A (Unofficial) June 14, 1967 This is in reply to your letter of June 5, 1967, in which you ask whether the sale through vending machines of Bayer aspirin, Bufferin, Ex-Lax and other related products is in contravention of Ga. Code Ann. 84-9961 which provides that it shall be a misdemeanor for any person to sell or dispense drugs by use of vending machines. As a criminal statute, Code Section 84-9961 must be strictly construed. Matthews v. Everett, 201 Ga. 730, 735 (1947). In addition, it appears that Section 84-9961 was created by an amendatory Act of the General Assembly, which Act also amended Ga. Code Ann. 84-1317 relating to the compounding and sale of drugs. Consequently, the two Code Sections relating to the same subject matter and created or modified at the same time must be construed together. Touchton v. Echols County, 211 Ga. 85, 87 (1954). Applying the above-described principles to Ga. Code Ann. 841317 and 84-9961, I find that the former provision specifically exempts from the coverage of Chapter 84 of the Code the sale by merchants of preparations commonly known as patent or proprietary preparations. Accordingly, I do not believe that the sale of such preparations falls within the proscription of Ga. Code Ann. 84-9961. Furthermore, I am not aware of any State or Federal law or'" regulation regulating the sale of aspirin or Ex-Lax and I must conclude that such items fall within the definition of proprietary preparations. OPINION 67-212 June 15, 1967 You point out that you have received federal funds to initiate a Performing Arts Project in the amount of $12,053.00, and that you 281 have received an equivalent amount appropriated by the General Assembly (Ga. Laws 1967, pp. 41, 45). As you have indicated, this office has determined that the act creating the Art Commission shows that the Commission was intended to function in an advisory capacity only and is not authorized to spend the monies appropriated for the above-stated project or similar projects. Ga. Code Ann. Ch. 40-26. You have requested my opinion as to whether the above referred to appropriations may, under Georgia law, be transferred to the Board of Regents so that the Performing Arts Project may be produced for Educational Television under the auspices of the Center for Continuing Education of the University of Georgia. Ga. Code Ann. 40-421 provides as follows: "In the event that any duties, purposes, and objects for which appropriations are made shall be transferred to a budget unit other than that to which appropriated, the appropriations for such duties, purposes and objects shall be made available subject to the provisions of this Chapter to such budget unit or budget units to which the duties, purposes and objects are transferred. Should the appropriation to be transferred not be shown in the Appropriation Act as a separate and identifiable item, the amount to be transferred shall be decided by the Budget Bureau in accordance with the detailed estimates or other information embodied in the budget report." The Art Commission is a "budget unit" within the meaning of the foregoing. Ga. Code Ann. 40-402(8) and 40-2607. It is apparent from the 1967 Appropriation Act that the General Assembly intended that the purposes and objects for which the above-stated appropriations were made were to be performed. As it happens, those purposes and objects cannot be performed directly by the Art Commission for the reasons heretofore stated. Therefore, it is my opinion that a transfer of such. appropriations may be made pursuant to Ga. Code Ann. 40-421, quoted above. 282 OPINION 67-213 (Unofficial) June 15, 1967 Since wntmg to you on June 8 a statute passed by the 1967 General Assembly having to do with the records of Superior Courts has been published. Actually, this recently enacted legislation fortifies the conclusion reached in my previous letter. By Ga. Laws 1967, p. 648, 649 the General Assembly amended Ga. Code Ann. 24-2714(1) so as to provide as follows, to wit: 1. To keep their offices and all things belonging thereto at the county site and at the courthouse. In the event the space at the courthouse is inadequate, the clerk may request, in writing, the governing authority of the county to move his office to some other designated place in the county. In his request, the clerk shall state the inadequacy which exists. The governing authority is authorized to comply with said request and may designate another place as the office of the clerk. Such place must be owned by the county or a body politic and shall be not more than 500 feet from the courthouse at their nearest points. The judge of the superior court of the circuit in which the county is located, or the senior judge in those circuits having more than one judge, must give written consent before the clerk shall be authorized to move his office to such place. In the event space at the courthouse or other place where the office of the clerk is located is inadequate to insure the safe storage of records, the clerk, after obtaining written permission from the governing authority of the county and of the superior court judge of the circuit in which the county is located or the senior judge in those circuits having more than one judge, may cause said records to be stored at some other place in the county not more than five miles from the courthouse. The clerk shall give public notice of the place of such storage by posting notice at the courthouse. As you will note from the above amendment more explicit details are established as to the procedure by which clerks of the superior courts can provide storage for the records of their office. Thus, to reiterate my previous position, it is my opinion that you 283 cannot store your records in an unlocked storage room either in or at some place other than the courthouse. OPINION 67-214 (Unofficial) June 16, 1967 You wrote concerning the detention of intoxicated persons and possible police liability if they are released. The first question appears to be as follows: Whether an intoxicated person may be held in custody for a minimum of four hours or until he sobers or whether he must be released into the custody of some responsible person before he has sobered? Ga. Code Ann. 58-608 defines public drunkenness as "Any person who shall be and appear in an intoxicated condition on any public street . . . .'' The problem presented is if a drunkard is released before he has sobered, he continues to commit the offense of public drunkenness. However, Ga. Code Ann. 27-90 I requires that bond be allowed in all misdemeanor cases as soon as the accused is taken before the commitment court or the defendant may procure his release from custody by posting bond, which will amount to a waiver of commitment by operation of law. Hopkins v. The State, 5 Ga. App. 700 (1909); Bird v. Terrell, 128 Ga. 386 (1907). Under Ga. Code Ann. 27-403, both parties are allowed a reasonable time to prepare for a commitment hearing if such is required. There is no statutory provision that would distinguish procedure under a charge of intoxication from any other misdemeanor. It is my unofficial opinion that an arbitrary period of detention (4 hours) or until the accused has sobered is unlawful under Georgia law and the court decisions, unless the defendant is unable or unwilling to post bond, and if there is no responsible person available to take custody of the defendant. Therefore, the intoxicated person is entitled to be released into the custody of a responsible person as soon as bail is allowable and paid. The second question posed is as follows: Whether a police officer may be held responsible for the acts of the accused once he is released on bond in the custody of a responsible person? If the officer is acting reasonably, in good faith, and within the 284 procedures prescribed by law, then it is my unofficial opinion that he could not be held liable for any subsequent acts of the accused once he is released from custody. Blocker v. Clark, 126 Ga. 484 (1906). OPINION 67-215 June 16, 1967 You request our legal opinion as to certain conditions of commercial driveways which are in violation of our "Rules and Regulations for Construction and Protection of State Highway Rights-of-Way." The specific questions you ask are, to wit: I. Does the State Highway Department have the right to construct the islands and barriers for the American Oil service Station located at the intersection of State Route 26 and State Route 67? 2. Does the State Highway Department have the right to correct the nonconforming conditions at the food store if Mr. Ellis refuses to do so? An abutting landowner on a public highway has a special right of easement and user in the public road for access purposes, and this is a property right which cannot be damaged or taken from him without due compensation. While entire access may not be cut off, an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway. If he has free and convenient access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has no cause for complaint. State Highway Board v. Baxter, 167 Ga. 124 (1928). The right of the Highway Department to control traffic on roads and streets which constitute part of a State-Aid or Federal-Aid System of roads is absolute. This power includes effort to reduce hazardous conditions. The right of access of the abutting owner is subordinate to the rights of the State or the public at large, and is subject to reasonable regulation and restriction. The answer to both questions I and 2 is in the affirmative. It is my opinion that the State Highway Department can legally place the channelization needed to effect compliance with our "Rules and Regulations for Construction and Protection of State Highway 285 Rights-of- Way," provided the channelization does not interfere with the inherit right of access. The State Highway Department would have the right to construct the islands and barriers for the American Oil Service Station located at the intersection of State Route 26 and 67 and also would have the right to correct the nonconforming conditions at the food store. The curbs and barriers proposed to be installed are traffic-control devices of the type and plan approved by the State Highway Department and the Federal Government. The purpose of the device is to protect the traveling public and to prevent private enterprise from using the public rightof-way in a manner that endangers the public in its use of the highway. The proposed curbs and barriers on the right-of-way will control ingress to and egress from the highway by abutting property owners, prevent the use of the public right-of-way for private enterprise, and protect the traveling public. OPINION 67-216 June 19, 1967 You asked whether the language in Section I, Paragraph Q of the Constitutional amendment which created the City of Barnesville and County of Lamar Development Authority (Ga. Laws 1964, Extra. Sess., p. 224) is mandatory or directory . . The paragraph in question provides that, "This amendment shall be self-executing and effective immediately upon proclamation of its ratification by the Governor and the first members of the Authority shall be appointed within thirty (30) days after such proclamation." The ratification of the amendment was proclaimed by the Governor on November 20, 1964, and you stated in your letter that three of five members of the Authority have only recently been appointed, while two have yet to be appointed. In general, the principles governing the construction of statutes apply also to the construction of a constitutional provision. City of Valdosta v. Singleton, 197 Ga. 194, 210 ( 1944). The case of O'Neal v. Spencer, 203 Ga. 588 (1948), involved a contention that the respondent's appointment as a member of a county board of education was void because he was not appointed within the thirty day period during which the particular statute under consideration provided that "two members shall be chosen". In reply to the allegation, the Court stated: 286 "Where a statute directs the doing of a thing in a certain time, without any negative words restraining the doing of it afterwards, generally the provision as to time is directory, and not a limitation of authority; and in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid." Similarly, in Horkan v. Beasley, II Ga. App. 273, 276 (1912), the Court stated: "The language of the statute is that 'it shall be the duty of the judges of the superior and city courts', etc.; but the use of the word 'shall', in a statute, does not always make the statute mandatory. The word may be construed to be directory wherever the public interest or right is concerned." See also Hopping v. Cobb County Fair Association, 222 Ga. 704 and Middleton v. Moody, 216 Ga. 237. Although the amendment in question provides that the members of the Authority shall be appointed within thirty days after proclamation of ratification of the amendment, this language does not relate materially to the essence of the thing to be accompli~hed. The delay in this case, although not insubstantial, will not result in prejudice to any interests, and the present implementation of the Authority will enure to the public welfare and benefit. In addition, there is no language in the amendment which would restrain the. appointment ofthe members after the stated time period. In view of the foregoing considerations, it is my opinion that the language in Section I, Paragraph Q of the amendment is directory and not mandatory, and that the delay in appointment of members of the Authority will not render their present appointment invalid. OPINION 67-217 (Unofficial) June 19, 1967 You inquire as to the authority of constables to enforce the traffic laws of their district. It is my opinion that they may do so. Ga. Code Ann. 92A-509 provides: "State highway patrolmen and any officer of this State, or of any county or municipality thereof having authority to arrest 287 for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this Chapter: Provided, that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality, unless such jurisdiction is given by local or other laws." The Georgia Supreme Court in Rose v. State, 107 Ga. 697 (1899) has determined that a constable is a public officer and is recognized by our Constitution and statute law as a county officer and possibly a state officer. The uncertainty of the court as to whether a constable is a state or county officer has no bearing on the present question because under the terms of Ga. Code Ann. 92A7509 quoted above, he may be either if he has the authority to arrest for a criminal offense of the grade of misdemeanor. The Georgia Supreme Court, in a decision based on the predecessor to Ga. Code Ann. 27-207, stated that a constable has the right to arrest a defendant for the violation of the state law. Glaze v. State, 156 Ga. 807 (1923). It seems, therefore, that under the laws of the State of Georgia, the constable may enforce the traffic laws of the State within his district. You should be aware, however, of the requirements of Ga. Code Ann. 68-1707, the pertinent provision ofwhich requires that: "Any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this State, or any municipality or county thereof, shall be distinctly marked on each side and the back with the name of the agency responsible therefor in letters not less than six inches in heights . . ." See also Op. Att'y Gen. 1958-59, p. 212. OPINION 67-218 June 20, 1967 You requested my official opinion as to whether the State Board of Corrections may pay hospital expenses incurred by Guy Kinman, an escaped prisoner, as a result of his wrecking a stolen automobile. It appears, from the letter written by Warden J. L. Downie, that the prisoner escaped in a stolen automobile which he wrecked. The 288 prisoner was injured in the crash and paid an ambulance driver to take him to a county hospital. A physician's bill for $40.00, a hospital bill for $201.90, and an ambulance company's bill for $35.00 have been presented for payment. The $35.00 ambulance charge was incurred to transport the prisoner from the county hospital to the prison hospital. The facts presented to me do not indicate at what point the escapee was returned to the physical custody of the State Board of Corrections. I assume, however, that the prisoner was not in the physical custody of the Board until the termination of the ambulance trip during which the prisoner was brought to the prison hospital. I further assume, from the language of Warden Downie's letter, that the ambulance trip, during which the prisoner was transported to the prison hospital, was arranged by prison officials. It is the responsibility of the government agency having physical custody of a prisoner to furnish any needed medical and hospital attention, and to bear all of the expenses relating to any escape and recapture of a prisoner. Ga. Code Ann. 77-309(e). It is my opinion that the Board may pay the bill from the ambulance company for transporting the prisoner from the county hospital to the State prison hospital as this expense may properly be classified as an expense relating to the recapture of the prisoner. Since the statutory authority for payment of medical expenses relates to prisoners in the physical custody of a governmental agency, it appears that the particular facts of this escape preclude payment of the bills from the physician and the hospital. Accordingly, it is my opinion that the Board is not authorized to pay either the hospital bill or the physicians' bill. OPINION 67-219 June 20, 1967 You requested my opinion as to whether or not you may legally approve and instigate a program of petroleum credit card purchases by state employees for state-owned automotive vehicles and promulgate reasonable rules and regulations for administering such a system of purchases. It is the duty of the Supervisor of Purchases to contract for the purchase of all supplies, materials and equipment required by the State Government subject to the provisions of Ga. Code Ann. Ch. 40-19.(Ga.CodeAnn. 40-1906.1). 289 Ga. Code Ann. 40-1935 provides: "To each and every invoice paid by any State agency or department, there shall be attached the delivery receipt and also a copy of the purchase order issued by the Supervisor of Purchases. And it shall be the duty of the State Auditor to disallow, as an illegal payment, any payments that do not have the receipts and purchase orders attached to the invoice paid. It shall also be the duty of the State Auditor to point out these items in the annual audit of each agency or department of the State." Ga. Code Ann. 40-1916 provides inter alia: "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 followmg cases; (c) Emergency supplies of drugs, chemicals and sundries, dental supplies and equipment. In the purchasing of emergency supplies under this paragraph, it shall be the duty of the department making said purchases to report same to the Supervisor of Purchases, giving the circumstances necessitating such purchases." It is my understanding from reviewing the material submitted with your request that the purchase of such items proposed to be purchased under the credit card system have, with respect to the Highway Department, customarily in the past been considered to be emergency purchases. It is my further understanding that the implementation of the credit card system will eliminate the necessity of paying federal excise taxes on petroleum products and will afford better controls over such purchases. If, under the facts existing with respect to the circumstances and the necessity of the purchase of such items, you are satisfied that such purchases are emergt;ncy purchases as they have been deemed in the past, it is my opinion that you may legally approve and instigate the credit card system of purchases which you have described in your letter. It is my understanding that this system will not change the present and existing policies with respect to the actual purchase of the items involved but will merely change the 290 method by which payment for the items will be made. I am unaware of any other legal prohibitions or constitutional limitations against such a program. Ga. Code Ann. 40-1906 and 40-1921 empower you to adopt necessary rules and regulations to carry out the terms of Ga. Code Ann. Chapter 40-19 relative to state purchases. It is therefore my opinion that you are authorized to promulgate reasonable rules and regulations for the purpose of administering this system of emergency purchases. In view of the foregoing, I can see no objection to extending such a program to other state agencies provided, of course, it is limited to legitimate emergency purchases as authorized by you pursuant to law. Should there be any particular legal problem or question, however, to arise in this respect, we will be happy to assist you in any way possible. OPINION 67-220 June 20, 1967 This is to advise that we today received oral notice from Mr. Floyd E. Siefferman, an attorney, that a mandamus action will be filed against the State Board of Accountancy because of the Board's refusal to permit inspection by a citizen of the register of names and addresses of persons applying for certificates as public accountants. Although we previously have discussed this matter with your Mr. M. H. Barnes, we immediately reviewed the law again upon receipt of the above notice. Ga. Code Ann. 84-203 provides in pertinent part that the Board "shall provide for the preservation of all applications, and of a record of its proceedings, and for the maintenance of a register of persons applying for and or receiving certificates under this Chapter, which register shall contain the names and addresses of all such persons." In 76 CJS Records, Section l, a public record is defined as "one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law . . . or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office." That Section goes on to say that "All records which the law requires public officers to keep, as such officers, are public records." 291 Ga. Code Ann. 40-270 I provides 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." Ga. Code Ann. 89-60 I provides as follows: "All books kept by any public officer under the laws of this State shall be subject to the inspection of all the citizens of this State, within office hours, every day except Sunday and holidays." In view of the foregoing, it is my official opinion that the State Board of Accountancy would have no defense to the proposed mandamus action and that the office of the Attorney General would be misleading the court and wasting the funds of the State to interpose a specious defense. Thus, it is my opinion that the office of the Attorney General would have to confess judgment in such mandamus action. Neither the motive of the citizen nor the fact that he might make such information available to a person not a citizen would be a defense. OPINION 67-221 (Unofficial) June 20, 1967 You requested my unofficial opinion concerning the coverage of certain county positions by the recently enacted Merit System Act for Floyd County. It is a fundamental rule of law in Georgia that all laws relating to the same subject matter must be construed together with each enactment being given its required weight. Harrison v. Walker, I Ga. 32 (1846). Consequently, the law passed at the last session of the General Assembly giving employees of the Solicitor General, Tax Commissioner and Clerk of Superior Court the option of coming under the Floyd County Merit System must be viewed in the light of enactments during the same session giving the abovenamed officials the right to take on and retain certain specified personnel at their pleasure. Ga. Laws 1967, p. 2253; H.B. No. 647, 292 Act No. 350, app. April6, 1967, H.B. No. 649, Act No. 228, app. April4, 1967. The conclusion necessarily reached is that the General Assembly intended to allow these officials to take on certain additional personnel if needed to supplement their normal staffs and for this reason an employment relationship more flexible than that provided by the Merit System was specified. Hence, these additional employees should not be given coverage in the event the regular employees of these offices are brought into the Floyd County Merit System. OPINION 67-222 (Unofficial) June 20, 1967 You requested an unofficial opinion interpreting Ga. Code Ann. 110-515, as amended, by the 1966 General Assembly. Ga. Code Ann. 110-515 provides as follows: "No judgment, decree, or order or any writ of fieri facias issued pursuant to any such judgment, decree, or order of any superior court, county court, city court, justice court, municipal court, or any United States court shall, in any way, affect or become a lien upon the title to real property until said judgment, decree, order or writ of fieri facias is recorded in the office of the clerk of the superior court of the county in which such real property is located, and is entered in the indexes to the applicable records in the office of such clerk. Such entries and recordings must be requested and paid for by the plaintiff or defendant, or their attorney-at-law. "The term 'applicable records' shall include deed books, lis pendens dockets, Federal tax lien dockets, general execution dockets and attachment dockets. 'The recording and indexing required by this section shall be in addition to and supplemental to all other recording of judgments, decrees and orders now required by law." Your inquiry concerns the interpretation of that part of the above-statute which provides that " ... until said judgment, decree, order or writ of fieri facias is recorded . . . and is entered in the indexes to the applicable records ....." You inquire as to 293 whether judgments, decrees, orders and fieri facias are to be recorded, or whether only one is to be recorded and, if one, which one. Additionally, you inquire as to the definitional section of the above-statute wherein the term "applicable records" is defined and inquire in which of the enumerated places should the actual recording be made. Furthermore, you raise the question as to whether it is conceivable and necessary that a given recording be made in more than one place. When interpreting legislation, the cardinal rule of statutory construction is that a statute must be construed so as to effectuate the intent of the legislature. Stroud v. Doolittle, 213 Ga. 32, 36 ( 1957). In order to ascertain this legislative intent, the law must be viewed as it originally existed prior to the legislative action, the evil with which the new law attempts to deal and the remedy intended the new law. Moore v. Baldwin County, 209 Ga. 514, 545-546 (1953) and Ga. Code Ann. 102-102(9). Thus, with the above principles in mind, it is necessary to examine the law as it existed prior to the 1966 amendment. By Ga. Laws 1958, p. 379, the General Assembly passed the following legislation: "No judgment, decree or order of any superior court, county court, city court, justice court, municipal court or any United States court in this State shall in any way affect the title to real property until said judgment, decree or order is recorded in the office of the clerk of the superior court of the county in which such real property is located and an index to such recording is entered in an index to one or more of the real estate records in the office of such clerk. "For the purpose of this section, the term 'real estate records' shall include deed books, lis pendens dockets, Federal tax lien dockets, and attachment docket. "For the purpose of this section, a general execution shall not be construed as being a judgment, decree or order. "The recording and indexing required by this section shall be in addition to and supplemental to all other recording of judgments, decrees and orders now required by law." Thus, by the 1966 amendment, writs of fieri facias were added to the judgments, decrees and orders, the recording of which was 294 already provided for and it also provided that no such judgment, decree or order or writ of fieri facias would " . . . affect or become a lien upon the title to real property until . . . [such] is recorded . . . , and . . . entered in the indexes to the applicable records . . . ." As indicated above, the prior law only provided that certain court action would not " . . . affect the title to real property until . . . [such was] recorded . . . and an index to such recording . . . [was] entered in an index to one or more of the real estate records in the office of such clerk." In the 1958 legislation, the term "real estate records" included " . . . deed books, lis pendens dockets, Federal tax lien docket and attachment dockets." The 1966 amendment provided that the court action in order to affect real property must be recorded and entered in the " ... indexes to the applicable records ...." It also provided that the term "applicable records" includes " . . . deed books, lis pendens dockets, Federal tax lien dockets, general execution dockets and attachment dockets." Whereas the prior law expressly excluded a general execution from being construed as a judgment, decree, or order, the new law includes a writ of fieri facias along with judgment, decrees, and orders and provides for their recording which is normally placed in general execution dockets. Thus, it appears that the general assembly intended to remedy an evil, i.e., the failure of the recording of fieri facias which could affect realty and to cure such evil by providing for their recording so as to thereby affect real property. Since real property can be affected by the recording of a judgment, order, decree or fieri facias, if such is recorded and entered in the indexes to the applicable records, it appears that the General Assembly intended for such action to affect real estate if recorded in any of the applicable records and for any judgment, order, decree or fieri facias to be recorded in as many of the records of the clerk of the superior court as included within the definition of applicable records. You will note the change from "index" in the 1958 statute to "indexes" in the 1966 amendment. I believe that this substantiates the above conclusion. Therefore, in answer to your first question, it is my opinion that as provided in Ga. Code Ann. 110-515, any and all judgments, orders, decrees or fieri facias must be recorded and not merely one of them. Also, in answer to your second question, it is my opinion 295 that any and all such judgments, orders, decrees or fieri facias must be recorded in as many of the appropriate records of your office as included within the definition of "applicable records." OPINION 67-223 June2l, 1967 You state that the State Highway Department of Georgia has several contracts in effect with Railroad Companies for the installation and maintenance of railroad grade crossings which contain the following clause: "Department insofar as it legally may agrees that the protection proposed for the aforesaid grade crossing is deemed adequate at this time and further that when and if vehicular traffic over said grade crossing justifies additional protection facilities or elimination of said grade crossing, Railroad will not be required to participate in the cost of such additional protection facilities or elimination of said grade crossing covered by this agreement." (Emphasis added.) You state that the Railroads construe the above clause as relieving them from any obligation for payment of any portion of the costs of installation of flashing light signals or construction of bridges for the purpose of eliminating hazards at Railway-Highway crossmgs. You have requested my official opinion on the following question: "Does the above clause which is contained in properly executed contracts between various railroads and the Highway Department legally relieve the railroad of all obligation for participating in the cost of flashing light signals or bridges which are required for the purpose of eliminating hazards at highway-railway grade crossings when it is determined that the railroad will benefit by the elimination of the hazards?" The obligation of the railroads to eliminate hazardous grade crossings is controlled by the police power provision of the Constitution of Georgia [Ga. Code Ann. 2-2502]; and, Ga. Code Ann. Ch. 95-19 which sets forth the "Grade Crossing Elimination Law" of Georgia. 296 Ga. Code Ann. 95-1902 provides that the State Highway Department may authorize and direct the elimination of grade crossings on the state road system, when, in its judgment it is practicable and, in the interest of public safety, is reasonably necessary. Ga. Code Ann. 95-1905 provides that the total cost of a grade crossing elimination by the use of an overpass or underpass shall be paid, one-half by the Department or County Board, and one-half by the railroad or railroads involved. Ga. Code Ann. 951907 authorizes the State Highway Department of Georgia to determine the question of necessity of "flashing light signals"; and, when such necessity has been determined, further authorizes the Department to require the railroad to install the signals, with o.nehalf of the expense to be paid by the railroad and the other one-half to be paid by the department. The above mentioned sections would apply when the elimination of grade crossings is on the State Road System. The State Law contains no reference to benefits to the railroad. When the highway involved is part of the Federal Interstate Highway System in which there is federal participation, the law governing railway-highway crossings is found in Title 23, Chapter 4, Section 130, U.S. Code. Sub-section (b) of said section provides that the Secretary of Commerce may classify the various types of projects involved in the elimination of hazards of railway-highway crossings, and may set for each classification a percentage of the costs of construction which shall be deemed to represent the net benefit to the railroad for the purpose of determining the railroad's share of the cost of construction. The percentage in such a case shall not exceed ten (10%) per centum. Sub-section (c) of said section provides, in part, as follows: "Any railroad involved in a project for the elimination of hazards of railway-highway crossings paid for in whole or in part from sums made available for expenditure under this title, or prior Acts, shall be liable to the United States for the net benefit to the railroad determined under the classification of such project made pursuant to subsection (b) ofthis section. Such liability to the United States may be discharged by direct payment to the State Highway Department of the State in which the project is located, in which case such payment shall be credited to the cost of the project. Such payment may consist in whole or in part of materials and labor furnished by the railroad in connection with the construction of such 297 project. If any such railroad fails to discharge such liability within a six-month period after completion of the project, it shall be liable to the United States for its share of the cost, and the Secretary shall request the Attorney General to institute proceedings against such railroad for the recovery of the amount for which it is liable under this sub-section . . . ." The obligation of the railroads to eliminate hazardous railwayhighway crossings is not controlled by the above mentioned provision of the contracts with the railroads; but is controlled by the above mentioned State and Federal Laws. The key words of the provision above quoted are "insofar as it legally may agrees". Even if the said quoted provision could be given such a construction, as to relieve the railroad of all obligation for participating in the cost of flashing light signals or bridges, (and we do not think that it is susceptible to such a construction), such an effort by the Department would be ultra vires, and a mere nullity. It would violate Article VII, Section Ill, Paragraph IV of the Constitution of Georgia, (Ga. Code Ann. 2-5604), providing that the "credit of the State shall not be pledged or loaned to any individual, company", etc. The effort by the State, (if it were so construed), to assume the railroad's portion of the expense of eliminating hazards, would constitute an illegal use of the tax funds of the State. See Ga. Code Ann. 2-550 I and Mulkey v. Quillian, 213 Ga. 507 ( 1957), et seq., in which decision, at page 509, the Supreme Court construed the said provision of the Constitution with reference to the authority of the State Highway Department to expend public funds. With the foregoing principles of law in mind, it is my opinion that the railroads must participate in the cost of flashing light signals or bridges which are required for the purpose of eliminating hazards at highway-railway grade crossings when it is determined that the railroad will benefit by the elimination of the hazard. The State Highway Department has no authority to change the law by including the proviso, "insofar as it legally may agrees", in its contracts with the railroads. Since the Department had no legal authority to make such an agreement, the same can be given no legal force or effect. 298 OPINION 67-224 June21, 1967 You requested my opinion as to whether the Crime Laboratory of the Department of Public Safety may, upon the request of the Federal Aviation Agency, perform scientific investigations of tissues and fluids from person killed in airplane crashes. You have also asked whether or not the State Crime Laboratory could assess a charge for such services. The State Crime Laboratory is authorized, empowered, and directed to assist a peace officer in charge of an investigation. Ga. Code Ann. 21-203. The phrase "peace officer in charge" includes the following: "Any member of the State Patrol, Georgia Bureau of Investigation, sheriff, or sheriffs deputy, peace officer assigned to coroner's office, county policeman, city policeman, or city detective who may be in charge of the investigation . . ." Ga. Code Ann. 21-202. Since the State Crime Laboratory is authorized to furnish assistance to specified state, county and municipal authorities, it is my opinion that the scientific resources of the State Crime Laboratory are not available to the Federal Aviation Agency upon its request. In view of the answer to your first question, it becomes unnecessary to reply to your second question. OPINION 67-225 (Unofficial) June21, 1967 You requested an unofficial opinion upon the following questions: I. Under Ga. Code Ann. 24-2746, a clerk may terminate his services before reaching age 55, if he has met all other requirements, but will not begin receiving retirement benefits until he reaches that age. If a clerk retires before reaching age 55 and wishes to provide benefits for a surviving spouse, would the clerk be required to make the election at the time of retirement, or could he wait until he reaches age 55 to do so? 2. If a clerk must make an election to provide survivorship benefits at the time he retires and he has not reached the age of 55 years, and his spouse should die before he has begun receiving retirement benefits, would he be bound by the election and only 299 receive the reduced benefits, or would he be entitled to receive full benefits? 3. Under Ga. Code Ann. 24-2740.3, a clerk may elect to take reduced benefits in order to provide benefits for a surviving spouse, and Ga. Code Ann. 24-2740.4 provides that if a clerk who is eligible to retire, but dies in office, his surviving spouse would receive benefits if he or she met the necessary requirements. Would the benefits under these two conditions be the same, or would the spouse receive $120.00 per month under Ga. Code Ann. 242740.3, and the one under Ga. Code Ann. 24-2740.4 receive $80.00 per month, assuming that the deceased clerk was eligible for the maximum benefits of $240.00 per month? 4. If a clerk retires on disability after 16 years service as provided by Ga. Code Ann. 24-2740.2, would he be entitled to benefits regardless of his age, or would he have to wait until he reaches age 55? I and 2. I have reviewed the laws relating to the clerks' retirement fund and find no provision requiring a clerk to make an election with respect to survivor's benefits prior to his reaching age 55. 3. Under the facts presented, it is my opinion that the benefits the spouse would be entitled to receive under the two conditions would be the same. 4. Age is not a factor in the benefit under Ga. Code Ann. 242740.2. If a clerk is eligible he would be entitled to receive the benefit regardless of age. OPINION 67-226 (Unofficial) June21, 1967 You requested advice as to whether or not the State of Georgia could accept property by a conveyance containing a reversionary clause. The State Department of Law, on numerous occasions, has rendered official opinions holding that the State of Georgia cannot accept conveyances of land containing reversionary clauses. I am sure you can readily understand that under such a deed there would be the possibility of State funds being lost through the 300 happening of the events specified in the reversionary clause. From our conversation, it is my understanding that the State would expend funds in the establishment of a State Mental Hospital in Chatham County. Article VII, Section Ill, Paragraph IV of the Constitution of the State of Georgia (Ga. Code Ann. 2-5604) provides: "2-5604. State aid forbidden.- The credit of the State shall not be pledged or loaned to any individual, company, corporation or association and the State shall not become a joint owner or stockholder in or with, any individual, company, association or corporation." It has therefore been concluded by this office that property conveyed in such a manner containing a reversionary interest in the grantor, after being improved with State funds or by the labors of State personnel, would be in violation of the above quoted constitutional provision. One exception to the above rule has been where the improvements, though considered "permanent" in the sense that under general principles of law they would become a part of the realty, were of such a nature as to be easily removable without material damage thereto and the deed or other instrument of conveyance contained a clause giving the State the right to remove these improvements either before or within a reasonable time after abandonment by the State. It is apparent that this exception would not be applicable in the case at hand. Therefore, in conformity with prior opinions of this office, I do not believe that the State of Georgia may accept a deed conveying anything less than fee simple title where it is contemplated that State Funds will be expended in connection with the use and enjoyment of the property. OPINION 67-227 June 22, 196. You requested my opinion as to whether ur not the Department of Public Safety may legally sell a quantity of pistols which are not in usable condition to various city and county police departments in this State for $1.00 each. 301 "The Supervisor of Purchases shall have power and authority and it shall be his duty . . . "E ... to provide for transfer and/ or exchange to or between all State departments, institutions and agencies, or to sell all supplies, materials and equipment which are surplus, obsolete or unused; . . . ." Section 4 of Article 9 of the Rules and Regulations of the Supervisor of Purchases provides: "Whenever a department certifies in writing to the Supervisor that certain described equipment is 'surplus, unused and disposable,' he will advise its method of disposal, either by gift or transfer to another department, or by sale. If it is necessary to sell such surplus equipment, due notice to the public shall be given, and written bids received by the Supervisor, or by the department at his request, and the highest and best bid will be accepted by the Supervisor. The item or items of equipment disposed of, as above, may then be taken from the inventory, the file of the transaction being attached to the inventory." Although the potential purchasers in this instance constitute only a small segment of the public, it is my opinion that the sale of the firearms may legally be made as indicated provided such sale is handled by you or approved by you and you are satisfied that the price to be received is the highest that can be expected from the potential purchasers and that it is, therefore, to the best advantage of the State to dispose of them in this manner. I am assuming that a number of city and county police departments have been notified of the proposed sale and that they have expressed a willingness to purchase a number of the pistols for $1.00 each. See Op. Att'y Gen. 1960-61, p. 380. Your letter does not indicate whether or not the Department of Public Safety has certified in writing to you that the pistols are "surplus, unused and disposable." This, of course, should be done in order to comply with your rule as set out herein. 302 OPINION 67-228 (Unofficial) June22, 1967 You wrote concerning the application of the homestead exemption where three persons own a tract of land as tenants in common and each reside in different homes located on said tract of land. Your question is answered in Ga. Code Ann. 92-219 .l, which provides as follows: "Where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim a proportionate exemption of the amount allowed by law in proportion to which the interest of the occupant bears to the total interest of the property.'' OPINION 67-229 (Unofficial) June 22, 1967 You requested my advice concerning the election of members of the State Highway Board. The applicable law is found in the "State Highway Board Reorganization Act," Ga. Laws 1963, p. l, et seq. (Ga. Code Ann. 95-1503). Ga. Code Ann. 95-l504(b) reads in part as follows: "The member of the Board from each Congressional District shall be elected by a majority vote of the members of the House of Representatives and Senate from the counties and senatorial districts, embraced or partly embraced within such Congressional District, meeting in caucus." from the above, it appears that your understanding of the election of the members of the State Highway Board is correct. They are elected from Congressional Districts by a majority vote of the members of the House of Representatives and Senate from the counties and senatorial districts embraced or partly embraced within such District. As to your second question concerning the procedure to follow where a member's legislative district falls in two different Congressional Districts, the above-quoted provision appears to 303 allow you to vote in both the First and the Tenth .Districts since you "embrace or partly embrace both Districts." OPINION 67-230 June 23, 1967 You requested an official ruling as to the arrest powers of State Troopers on federal property-especially federal parks and rest areas around federal lakes-in the State of Georgia. It is my opinion that State Troopers may make arrests in any of these areas for offenses against the State laws committed outside the federal boundaries but within the State. The Troopers may also enforce State laws within the boundaries of such federal property where jurisdiction is concurrent as will be discussed herein. The concept of jurisdiction in National Parks is elusive. Although the courts and administrative agencies of the federal government have spoken of three "types" of jurisdiction-exclusive, concurrent, and proprietary--there are in reality only two. The term "proprietary jurisdiction" should not be used to refer to federal criminal jurisdiction within a National Park. The National Park Service has defined "proprietary jurisdiction" as those instances in which the federal government has acquired some right or title to an area in a state but has not obtained any measure of the state's authority over the area. It seems to be assumed that the federal government has no criminal jurisdiction per se in these areas. The distinction is, however, tenuous and, as I shall explain later, the federal authorities could easily find grounds for exercise of such jurisdiction should they ever desire to do so. Areas of exclusive jurisdiction are "federal reservations" or "federal enclaves" such as the Yellowstone, Yosemite, and Rocky Mountain National Parks. Such exclusive jurisdiction may be acquired by three means: (I) federal acquisition of land with State consent under Article I, Section 8, Clause 17 of the United States Constitution; (2) through the transfer of jurisdiction by cessation from the state to the federal government, see Fort Leavenworth Railroad v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L. Ed. 264 ( 1885); and, (3) by retaining exclusive jurisdiction over a federally owned area within the state at the time the state is admitted to the Union. Fort Leavenworth Railroad, supra. Where this exclusive 304 jurisdiction exists, the right of the federal government to exercise authority in criminal matters has never been seriously challenged. But, though the state may not punish for acts done within the ceded lands, it seems well-settled that the states reserve the power to issue and serve criminal as well as civil process within the reservation or enclave for acts done within and cognizable by the state. This reservation is permitted to prevent these lands from becoming sanctuaries for fugitives from justice, and it has been held that such rights in the state are not incompatible with the federal government's rights to exclusive jurisdiction over the area. United States v. Cornell, 2 Mas. 60, (Opinion by Mr. Justice Story) cited with approval in Fort Leavenworth Railroad, supra. The authority of the federal government to deal with criminal matters where the United States does not have exclusive jurisdiction is somewhat less clear. It stems from three constitutional provisions dealing with property protection and control, congressional authority to make all needful laws, and the supremacy of federal laws. United States Constitution, Article IV, Section 3, Clause 2 states that: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State." In interpreting this clause, the Supreme Court states in McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 30 I (1922), that Congress could prescribe rules respecting the use of public lands and in so doing, could sanction some uses and prohibit others. In United States v. Trinidad Coal Company, 137 U.S. 160, II S.Ct. 57, 34 L. Ed. 640 (1890), the court added that all of the public lands were held in trust for the citizens of the United States and that it was the duty of Congress to determine how the trust should be administered. The court implied that the real authority of the United States over these lands stemmed not from mere proprietorship but from the power of the United States as a sovereign over the property belonging to it. Article I, Section 8, Clause 18 of the Constitution states that Congress shall have the power "To make all laws which shall be 305 necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Under this clause, the federal government has undisputed authority to protect the proper carrying out of the functions assigned to it by the Constitution without regard to the jurisdictional status of the land upon which the functions are carried out. Where such functions involve federal use of property, the Congress may, regardless of the jurisdictional status of such property, make such laws with respect to the property as may be required for effectively carrying out of those functions. See Arizona v. Calzfornia, 283 U.S. 423, 51 S.Ct. 522, 75 LEd. 1154 (1931); accord James Stewart and Company v. Sadrakufa, 309 U.S. 94, 60 S.Ct. 431,84 L.Ed. 596 (1940). The Supremacy Clause is contained in United States Constitution, Article VI, Clause 2 and perhaps the most famous pronouncement of it may be found in Chief Justice Marshall's decision in McCulloch v. Maryland, 17 U.S. 316, 4 LEd. 579 (1819). The clause does not require elaboration, but I might point out one instance where the supreme power of the federal government to protect its property was demonstrated. In Hunt v. United States, 278 U.S. 96,49 S.Ct. 38, 73 L.Ed. 200 (1928), it was held that a state could not enforce its game laws against federal employees who, upon direction of the Secretary of Agriculture, destroyed a number of wild deer in a national forest (which was not under the exclusive jurisdiction of the federal government) because the deer, by overbrowsing upon and killing young trees, bushes and forage plants, were causing damage to the land. The authorization by the Secretary was held to be within the authority conferred by Congress, and the power of the federal government to protect its property regardless of the game laws or any other state statute. Together these three provisions of the Constitution grant to the United States concurrent (with the State) criminal jurisdiction over those federally owned areas which are not under the exclusive jurisdiction of the United States. The concurrent criminal jurisdiction which the State of Georgia may exercise, however, does not extend to any matter that is not consistent with full power in the United States to protect its land, to control their use, and to prescribe in what manner others may acquire rights in them. Obviously, the right to arrest those persons guilty of violations of 306 state law outside the federally controlled area but taking refuge within is not inconsistent. In some instances,the federal government may recognize and welcome the state's power to enforce its criminal laws within the federal territory, but the Department of Public Safety must realize that, in accordance with the abovestated principles, legally this power exists at the pleasure of the United States and may be denied in the future. For general information in this area, see Comment, Criminal Jurisdiction in the National Parks-A Clarification, 2 Land and Water L. Rev. 151 (1967); Note, 15 Syracuse L. Rev. 754 (1964). OPINION 67-231 June23, 1967 You have asked for my official opinion in regard to the payment of University System employees for participating in a fallout shelter environmental study in their non-working hours. As I understand the situation, the University of Georgia has received a Federal Grant to study the reactions of large groups of people placed in the confines of a simulated fallout shelter over varying periods of time. In order to induce a cross section of the community to participate in the experiments it has been necessary to offer nominal sums of money, varying with the length of the program, to participants. Several such programs have been completed to date and, because the grant prohibits the participation of any one person in more than one study, the number of persons in the Athens area available to participate in the program has become reduced. Accordingly, you have asked if University System employees may in their off hours participate in the experiment for compensa,tion in view of Ga. Laws 1956, p. 60, 61 (Ga. Code Ann. 89-913), which provides that it shall be unlawful for any full-time appointive State official or employee to contract to buy from or sell to the State any property, goods or services when such purchase or sale would benefit or be likely to benefit such official or employee. In addition, you have asked whether the University would be required to comply with the minimum wage and overtime provisions of the Federal Minimum Wage and Hour Law if such employees are allowed to participate in the above-described program. 307 Turning now to your first question, it is clear that, taken literally, the above-described law would preclude the participation of State employees in your experiment. Such an interpretation would, moreover, make it a misdemeanor for a full-time appointive State employee to attend and pay for night instructional courses at Georgia State College because such employee would be buying services likely to benefit him. Similarly, it would he a criminal act for such employee to pay to attend a concert or other artistic production sponsored by the State for the same reasons outlined above. Construction of a statute must -square with common sense and sound reasoning, bearing in mind the old law, the evil and the remedy. Blalock v. State, 166 Ga. 465,470 (1928); Gazan v. Heery, 183 Ga. 30 (1936). Accordingly, I believe that the clear intention of the General Assembly was to prevent the evil of State employees using their inside knowledge and their positions of authority to profit from transactions with the State at the expense of the public. In the situation described by you, the State employees will not be chosen because of their inside knowledge. Nor will they be able to be selected on the basis of their employment with the State. Consequently, it is my official opinion that Ga. L. 1956, p. 60 is inapplicable and does not bar the use of State employees in your experimental program. As to your second question, it is provided that hours worked by an employee shall not include time spent by such employee which is: (a) outside the employee's normal working hours; (b) voluntarily spent; and (c) for a public or charitable purpose. 29 C.F.R. 785.44. Consequently, it is my opinion that the Federal Wage and Hour Law is inapplicable to University System employees voluntarily participating in your study outside their normal working hours. OPINION 67-232 June 26, 1967 You ask whether or not the Georgia Prison Industries Administration may employ a salesman on a commission rather than a salary basis. The Georgia Prison Industries Administration is a public corporation. Ga. Code Ann. 77-902. The corporation is 308 authorized to appoint agents and employees to carry on the business of the corporation and to fix the compensation for such employees. Ga. Code Ann. 77-904. It appears that no legislative intent is expressed concerning the manner in which employees of the corporation shall be paid, except that the corporation itself has the authority to fix compensation. Accordingly, it is my opinion that the salesman, who is employed to dispose of products made in Georgia's prisons, may be paid by the corporation on a commission basis. OPINION 67-233 June27, 1967 You requested my opm10n as to whether you may legally, pursuant to Ga. Code Ann. 86-802, allocate funds to the officerin-charge of an armory occupied by more than one unit of the National Guard rather than to each of the units occupying the same facility. Ga. Code Ann. 86-802 referred to above provides: "Out of the funds appropriated for the military fund the Adjutant General may, in his discretion, allocate to the units of the organized militia moneys for rental, maintenance, and utility expense of unit facilities, and for the welfare of the members of such units. The expenditure of such funds shall be in accordance with regulations issued pursuant to this law [Ga. Code Ann. Ch. 86-1 thru 86-14; 86-9901 thru 86-9913]." It is my opinion that the above provision authorizes such funds to be allocated only to the units of the organized militia and not to an officer-in-charge of such a unit or several units. Such funds may, however, in my opinion, be allocated to several units jointly where they occupy the same facilities with the officer-in-charge designated as custodian. In my opinion such an arrangement meets the intent of Ga. Code Ann. 86-802. OPINION 67-234 June 27, 1967 You requested my official opinion concerning the authority of the State Board of Corrections to forfeit the good-time allowance 309 of a prisoner on a basis of a prior escape when said prisoner has been acquitted on a charge of said escape. It is my understanding that this question arose in the case of Robert L. Cummings, A-48 I40. As I understand the facts, Mr. Cummings escaped from the Cobb County Public Works Camp on June 5, 1966, and was subsequently apprehended by the Atlanta Police Department in Atlanta, Georgia, on June 5, 1966. A warrant was sworn out by the warden of the Cobb County Public Works Camp charging this inmate with escape. Subsequently, Mr. Cummings was tried on the charge of escape and was found not guilty. Due to Mr. Cummings' escape from the Cobb County Public Works Camp, your department deducted a total of eleven months and six days from his good-time allowance. It is Mr. Cummings' present contention that since he was found not guilty of the escape in the trial on this charge, then he should not forfeit any good-time whatsoever. The authority for the State Board of Corrections to allow and to deduct good-time allowance is found in the provisions of Ga. Code Ann. 77-320, Subsections (b) and (c) as follows: "(b) Computation of Good-time Allowances-upon receipt of a prisoner by any prison or county public works camp operated under the jurisdiction of the State Board of Corrections, said Board shall forthwith compute the aggregate of the maximum extra goodtime allowances and statutory good-time allowances that said prisoner can possibly earn for the minimum and maximum sentence or sentences imposed thereon . . . ." "(c) Deduction for Good-time Allowance-the wardens of the various penal institutions above referred to shall immediately notify the Board in writing of any punishment imposed or other disciplinary action taken against any prisoner under such warden's custody, said report to be on forms prescribed and furnished by the Board, and shall show, among other things, the work record and behavior record of the prisoner including the punishment imposed therefor. From said record so furnished, the Director of Corrections or any of his assistants shall evaluate said act of misconduct or failure to work, and make appropriate deductions from the statutory and extra good-time allowances earned by the prisoner up to the time of the offense, said deduction to take into 310 account the severity of the offense, and the past record of the prisoner: provided that all statutory and extra good-time allowance earned up to the time of the offense shall be forfeited for escape, attempt to escape, mutiny, sodomy, resisting arrest, assaulting a guard, warden, or other prison official or employee, or possession of any contraband which would aid in an escape or the infliction of serious injury upon any person: provided, however, that the State Board of Corrections may formulate rules and regulations providing the manner and what circumstances a prisoner may earn reinstatement of a part or percentage of whatever statutory or extra good-time has been forfeited by the offenses herein above mentioned." It is to be noted from the above quoted code section that the State Board of Corrections is given broad powers to be exercised in the computation and the deduction of good-time allowance. Furthermore, it is to be noted that Subsection (c) of Ga. Code Ann. 77-320 makes it mandatory upon the State Board of Corrections to forfeit all of the statutory and extra good-time allowances earned up to the time of an escape or an attempt to escape. From the facts as set out above, it is evident that Mr. Cummings' actions would come within the legal definition of an escape. The case of Johnson v. State, 122 Ga. 172( 1) ( 1905) sets out the legal principles for the definition of an escape: "Under the principles of the common law as it is recognized in the law of this State, one who has been convicted of crime and delivered into the custody of the officer of a lawful chain gang is guilty of an escape, under the Penal Code, 314, if he voluntarily leaves such custody, though prior to the escape, he was not fettered, but was treated as a Trustee' and allowed some measure of liberty not allowed to other convicts " The fact that the prisoner in question was acquitted in a trial on a charge of escape has no legal effect on the authority of the State Board of Corrections to deduct from said prisoner's good-time allowance for such an escape. It is a well-known principle of law that in a civil action it is not permissible to introduce a criminal conviction or acquittal of a party into the civil suit for the purpose of proving the criminal act. See Seaboard Airline Railway v. 0' Quin, 124 Ga. 357(3) (1905); Padgett v. Williams, 82 Ga. App. 509(3) (1950). The fact that the prisoner was acquitted in a criminal prosecution for this escape does not have any bearing on whether 311 through an administrative proceeding the Board of Corrections can cause the good-time allowance of the prisoner-escapee to be forfeited. It is, therefore, my official opinion that the State Board of Corrections can cause Mr. Cummings' good-time allowance to be forfeited and that the finding of not guilty in a trial on this escape charge was immaterial. Based on the statutory provisions of Ga. Code Ann. 77-320, Subsections (b) and (c) which give the State Board of Corrections the authority to compute and to deduct for good-time allowances and because the actions of this prisoner came within the legal definition of an "escape" then it was mandatory under the provisions of Subsection (c) that the State Board of Corrections should cause the extra good-time allowance of the prisoner-escapee to be forfeited for such escape. OPINION 67-235 (Unofficial) June 27, 1967 You requested an official opinion as to whether or not Section 3 of the Georgia Searches and Seizures Act, Ga. Laws 1966, p. 567, 568, limits a showing of probable cause to the information contained in the complaint or affidavit itself, thereby changing the rule of Marshall v. State, 113 Ga. App. 143, 147 S.E.2d 666 (1966) that "[w]hen a search warrant and the affidavit upon which it is issued do not recite sufficient facts upon which a determination of probable cause could be made by the issuing magistrate, the burden is on the State to show that sufficient facts were submitted before the magistrate to establish the existence of probable cause." In Marshall, the ground of the objection to the evidence obtained by use of the warrant was that the warrant was not supported by proper affidavit. It will be assumed that the objection was, more specifically, that the affidavit did not recite sufficient facts to support an independent judicial determination of probable cause. The warrant, however, recited that additional facts had been submitted before the magistrate with reference to the location, possession and nature of the contraband, and the turning point of the case is the admission into evidence of the officer's testimony with reference to these additional facts to show that sufficient facts to support a judicial determination of probable cause were actually 312 submitted before the issuing magistrate. The officer was thus allowed to enlarge on the affidavit by oral testimony. The language of the Act seems to indicate that Marshall is no longer good law. The pertinent part of Section 3 provides for the issuance of the warrant "[u]pon the written complaint of any officer . . . which states facts sufficient to show probable cause . . . . "Ga. Laws 1966, p. 568 (Emphasis added). This language is similar to that of the federal rule: "A warrant shall issue only on ajjidavit . . . establishing the grounds for issuing the warrant." Fed. R. Crim. P. 4l(c), 18 U.S.C.A. (1961), (Emphasis added). Cases construing this section hold that it requires the affidavit itself to set out the information constituting probable cause. Baysden v. United States, 271 F.2d 315 (4th Cir. 1959); Lowery v. United States, 161 F.2d 30 (8th Cir. 1947), cert. denied, 331 U.S. 849 (1947); United States v. Evans, 97 F. Supp. 95 (N.D. Tenn. 1951). In Evans, supra, p. 96, the construction to be placed upon the federal rule was thus explained: "There is always the possibility that the Commissioner was given information other than that contained in the affidavit and that his finding of probable cause, either consciously or subconsciously, rested in part upon such information. But as such information was not under oath and in writing subscribed and sworn to, it does not conform to the requirements of the Constitution and of Rule 41, hence is not admissible in a review by the Court of the question of probable cause, any more than it was admissible before the Commissioner in the findings of probable cause for the issuance of the search warrant." The Georgia Act was approved on March 16, 1966. It would seem reasonable that it should receive the same construction as has the comparable language of the federal rule. In view of the similarity of the language of the Georgia Act to that of the federal rule and of the treatment that the federal rule has received by the courts, it is my unofficial opinion that the new Act does change the law of Marshall and requires that the affidavit or complaint itself state facts sufficient to support an independent judicial determination of probable cause. This construction does not justify the conclusion that an officer can never testify as to other facts that were submitted before the magistrate merely because the facts were 313 not set out in the affidavit. If the affidavit contains a bare minimum of facts sufficient to support an independent judicial determination of probable cause, then there should be no objection to the further enlarging of the affidavit by showing other facts that were also presented to the magistrate unless an objection were made based on some rule of evidence. The important point of the section in question is that without an affidavit or written complaint which states facts sufficient to show probable cause, there can be no valid search warrant, and no amount of evidence of other facts that were presented to the magistrate will cure the defective affidavit. At present, there has been no case expressly construing this section, but it would seem that the conclusion here drawn is the reasonable one. OPINION 67-236 (Unofficial) June27, 1967 You requested information concerning Ga. Code Ann. 69-904 in regards to the problems of municipal annexation. In Ga. Code Ann. 69-904 provision is made as follows: "Authority is hereby granted to the governing bodies of the" several incorporated municipalities of this State to annex to the existing corporate limits thereof unincorporated areas which are contiguous to the existing corporate limits at the time of such annexation, upon the written and signed application of not less than 60 per cent, of the electors resident in the area included in any such application and of the owners of not less than 60 per cent. of the land area, by acreage, included in such application. The authority hereby granted is in addition to existing authority, and is intended to provide a cumulative method of annexing territory to incorporated municipalities in addition to those methods provided by present law. "Each such application shall contain a complete description of the land proposed to be annexed .. Lands to be annexed at any one time shall be treated as one body, regardless of the number of owners, and all parts shall be considered as adjoining the limits of the municipality when any one part of the entire body abuts such limits. 314 "For the purpose of determining the percentage of electors signing such application the municipal governing body shall obtain a list of electors residing in such area from the board of registrars of the county or counties in which the area lies. Said list shall be compiled by th~ board of registrars and provided to the municipal governing body in accordance with section 34636 of the Georgia Election Code, and the municipal governing body shall bear the expense of the preparation of such lists in the manner prescribed by such section. "For the purpose of determining ownership of the property included within such application, the record title holder of the fee simple title, or his legal representative, shall be considered the 'owner' of such property." Additionally, Ga. Code Ann. 69-908 provides the following definition of "contiguous area": " 'Contiguous area' shall mean any area which, at the time annexation procedures are initiated, coincides with the municipal boundary on at least one-eighth of the area's aggregate external boundary. Any area separated from the municipal boundary by a street or street right-of-way, a creek or river, the right-of-way of a railroad or other public service corporation, lands owned by the city, lands owned by a county, or lands owned by the State of Georgia shall be a 'contiguous area' within the meaning of this law [ 69-904 through 69-912] when such area coincides with either the municipal boundary or such land or both on at least oneeighth of such area's aggregate external boundary: Provided there shall be no annexation across the boundary lines of any political subdivision under the provisions of this law." The first question which you posed concerns whether or not the acreage of the railroad right of ways, county owned property, creeks or rivers, etc. is to be included in the computation of the total acreage of the area seeking annexation for the purpose of determining if 60% of the owners of such acreage made application for annexation. Your second inquiry concerns the problems raised by the presence of a tract of land included as a part of the area to be annexed which is owned by the county, State School Building Authority, or some other governmental entity, but which is not 315 contiguous with the existing boundary line of the city. The particular question is as to whether such is to be included in the acreage when determining whether the owners of 60% of the property within said area are applying for annexation. You give as an example of such a situation a 50 acre tract of land in Richmond County as to which an application for annexation may be filed. The tract in question contains as a part thereof a 15 acre tract of land on which there is located a public school. You inquire whether the 15 acres are to be included in the computation of the total acreage of the area seeking annexation of which not less than 60% of the owners of'said property must make application for annexation. Your third question concerns the acreage within street right of ways, presumably, included within the area described in the application and whether such acreage must be included in the land area computations to determine if the owners of not less than 60% of the land area, by acreage, are applying for annexation. Also, you inquire as to whether, under the statute, the "owner" of such acreage would be the county. Your final question concerns an interpretation of the following language in Ga. Code Ann. 69-904 " . . . electors resident in the area . . ." and the problem as to what date a determination should be made as to whether 60% of the electors have applied for annexation. As you know, the cardinal rule in construing a statute is to ascertain and thus effectuate the true intention of a legislature when passing the legislation. Lamons v. Yarbrough, 206 Ga. 50 (l) (1949) and Ga. Code Ann. 102-102 (9). However, another rule of construction provides that "where a legislative act is plain, unambiguous and positive, and not capable of two constructions, the act must be taken to mean what it says and judicial interpretation is forbidden." Fulton County Employees Pension Board v. Askea, 95 Ga. App. 77 (l) (1957). Also see: Barnes v. Carter, 120 Ga. 895, 898 (1904). Therefore, with the above guide lines in mind an examination will be made of the questions presented by your request. In reply to your first question it is my opinion that the statute is " . . . plain, unambiguous and positive . . ." Askea, supra, in that it requires an application by not only the applicable percentage of electors but also the application ". . . of the owners of not less than 316 60 per cent. of the land area, by acreage, . . .". Thus, the acreage of railroad right of ways, county owned property, creeks and rivers, etc. must be included in the calculation of the total acreage for which application for annexation is made. Thus, the application must be made by not less than 60% of the owners of the total acreage including the acreage of those tracts in question. Your attention is called to the fact that the statute is constructed with regards to areas which are ". . . contiguous to the existing corporate limits . . .". By definition, the statute provides that "Any area separated from the municipal boundary by a street or street right of way, creek or river, the right of way of a railroad or other public service corporation, lands owned by the city, lands owned by the county, or lands owned by the State of Georgia . . ." are to be considered contiguous within the above definition if such area " ... coincides with either the municipal boundary or such land or both on at least one-eighth of such area's aggregate external boundary: ..." Ga. Code Ann. 69-908. Therefore, such a definition was intended, in my opinion, by the legislature to provide a method whereby an area separated from a municipal corporate limit by streets, creeks, city or county property, could be annexed to the municipal corporation although separated from the existing corporate limits by such a divider. Since such a divider will be included within the corporate limits after annexation, the owner of such property should have the right to voice an opinion in connection with the other owners concerning his desires for annexation. This is of course especially true in the case of property owned by railroads and public service corporations which are subject to taxation. The above conclusion is also supported by the fact that the legislature expressly provided, by way of the definition of "contiguous area", for the situation where such streets, creeks, and city or county property act as a divider. This indicates that the legislature was aware of the possible existence of such property but did not choose to exclude it from the computation of the total acreage to be annexed of which not less than 60% of the owners must apply for such annexation. Your second question is answered, in part, by the above comments. The acreage of that land belonging to the county, State School Building Authority, or some governmental entity, when included within the description of the area to be annexed, must be 317 included in determining the total acreage of the area for which annexation is sought and of that total acreage not less than 60% of the owners must make application for annexation. Again, it is my opinion that the legislature did not intend for any property to be annexed to a municipal corporation without the owner of said property at least being allowed a voice on the question of such annexation. Of course, if the county or State School Building Authority or some other governmental entity chooses not to make application for annexation, but at least 60% of the other owners of property in the area making application for annexation do apply, the statutory requirements are met irrespective of the wishes of some owners. Your attention is called to the proviso in Ga. Code Ann. 69-908 (Supp. 1966) wherein it is stated that "provided there shall be no annexation across the boundary lines of any political subdivision under the provisions of this law". In reference to your third question the last paragraph of Ga. Code Ann. 69-904 provides that "For the purpose of determining ownership of the property included within such application, the record title holder of the fee simple title, or his legal representative, shall be considered the 'owner' of such property." Additionally, Ga. Code Ann. 69-904 provides in the first paragraph that both " . . . not less than 60 per cent. of the electors resident in the area . . . and . . . the owners of not less than 60 per cent. of the land area, by acreage, .. .'' must be included in the written and signed application. Thus, the acreage within street right of ways must be included in the land area computation when determining the total acreage of which the owners of 60 per cent. of said acreage must make application for annexation. Presuming that the county is the". . . record title holder of the fee simple title ..." to the street right of ways by way of condemnation, imminent domain, deed of gift, deed of purchase, or by some other method by which record fee simple title is obtained, the county is the "owner" of said property pursuant to Ga. Code Ann. 69-904 and the consent of the county as the "owner" may be obtained in arriving at 60 per cent. of the owners of the property within said tract. In answer to your fourth question your attention is called to the third paragraph of Ga. Code Ann. 69-904 which provides as follows: 318 "For the purpose of determining the percentage of electors signing such application the municipal governing body shall obtain a list of electors residing in such area from the board of registrars of the county or counties in which the area lies. Said list shall be compiled by the board of registrars and provided to the municipal governing body in accordance with 34-636 of the Georgia Election Code, and the municipal governing body shall bear the expense of the preparation of such list in the manner prescribed by such section." In Ga. Code Ann. 34-636 provision is made as follows: "(a) Whenever the authority of a governmental subdivision within a county, who is charged with the responsibility of holding election, shall request the board of registrars of the county to furnish a list of electors qualified to vote in the election involved and residing within the limits of such subdivision, it shall be the duty of the board of registrars to promptly prepare and furnish such a list. "(b) The county shall be compensated for the work of the board of registrars in preparing and furnishing such list in an amount agreeable to the board and the authority of such governmental subdivision in charge of the election involved. If they are unable to agree upon such amount, then it shall be determined by the State Election Board.'' Thus, a municipal governing body must request a list of electors registered in the particular area making application for annexation. The board of registrars must then "... promptly prepare and furnish such a list". In my opinion when preparing the list the board of registrars should determine those electors within that area as of the date on which the application for annexaton was presented by the electors and property owners to the municipal governing body since Ga. Code Ann. 69-904 provides that authority is granted for annexation " . . . upon the written and signed application of no less than 60 per cent. of the electors resident in the area included in such application . . .". Your attention is called to Ga. Code Ann. 34-632 for the rules applicable to the determination of the residency of a person. OPINION 67-237 June 28, 1967 You ask whether Ga. Laws 1967, pp. 481-82, requires boards of education of independent (i.e. municipal) school systems to publish 319 certain fiscal statements and records of the school systems which they operate and maintain. In my opinion said statute does not impose any such requirement upon independent boards of education. The relevant portion of Ga. Laws 1967, pp. 481-82, reads: "As soon as practicable after the close of its relative fiscal year .. .the governing body of each municipality shall cause to be published in the municipality . . . a general balance sheet and statement of revenues and expenditures showing all municipal accounts as of the close of such preceding fiscal year ...." (Emphasis added) As is shown by the italicized portion of this statutory language, it is the "governing body" of a municipality to which the statute refers and not to the city school board (a school board, needless to say, is riot customarily the "governing body" of a municipality). Hence the statute is not applicable to municipal school boards. OPINION 67-238 (Unofficial) June 28, 1967 You inquired as to the fees for the performance of various duties by a justice of the peace. The 1967 General Assembly amended Ga. Code Ann. 24-160 I relating to the fees which a justice of the peace may legally charge. This amendment has been denoted for identification purposes as Act No. 382 (H. B. No. 322) and was approved by Governor Maddox on April 11, 1967. In your inquiry you particularly question the practice of some justices of the peace who have been charging $6.50 for each criminal warrant not issued under the Uniform Act Regulating Traffic on Highways. This fee would include the allowable $4.00 for the issuance of such a criminal warrant plus an additional charge for those duties performed in connection with said case for which the legislation provides specific charges, e.g., docketing and filing. Unless there is a necessity for the filing of papers more than once in such a case so as to allow the charge of $.50 for filing papers more than once, it is not clear to me how the justices of the peace arrive at the specific charge of $6.50, since the fee for docketing each case is only $1.00. 320 Additionally, you inquired as to whether a justice of the peace could legally charge more than $.50 for the issuance of each criminal warrant under the Uniform Act Regulating Traffic on Highways. The following provision is made in the 1967 amendment to Ga. Code Ann. 24-1601: "Each criminal warrant issued under the Uniform Act Regulating Traffic on Highway ..... 50." Additionally, the 1967 amendment provides as follows: "Each criminal warrant issued except warrants issued for offenses under the Uniform Act Regulating Traffic on Highways . . . $4.00." As you know, the cardinal rule in construing a statute is to ascertain and thus effectuate the true intention of the legislature when passing the legislation. Lamons v. Yarbrough, 206 Ga. 50 (1) (1949) and Ga. Code Ann. 102-102 (9). However, it is also a rule of construction that "Where a legislative act is plain, unambiguous and positive, and not capable of two constructions, the act must be taken to mean what it says, and judicial interpretation is forbidden." Fulton County Employees Pension Board v. Askea, 95 Ga. App. 77 (1) (1957). Also see: Barnes v. Carter, 120 Ga. 895, 898 (1904). Therefore, with the above guide lines in mind, it is my opinion that the 1967 amendment to Ga. Code Ann. 24-1601 in regards to the fees allowed a justice of the peace for the issuance of criminal warrants is"... plain, unambiguous and positive, and not capable of two constructions , . . . ." Askea, supra. The act provides for a charge of $4.00 for "Each criminal warrant issued except warrants issued for offenses under the Uniform Act Regulating Traffic on Highways" and $.50 for "Each criminal warrant issued under the Uniform Act Regulating Traffic on Highways." Thus, in my opinion, a justice of the peace may not legally charge in excess of $.50 for the issuance of any criminal warrant under the Uniform Act Regulating Traffic on Highways. In regards to the total cost of a case originating with a criminal warrant not issued under the Uniform Act Regulating Traffic on Highways, it is my opinion that the justices of the peace may legally charge only $4.00 for the issuing of each warrant. When a criminal warrant is issued by a justice of the peace there can be no requirement made that the arresting officer return the person to the officer issuing the warrant for such an arresting 321 officer has the discretion to take the person before the nearest officer who is authorized to hold a court of inquiry. Ormond v. Ball, !20 Ga. 916 (6) and (7) (1904). If the arresting officer does take the person before the justice of the peace who issued the warrant then, in my opinion, such a justice may charge for those duties performed in the case the fees as enumerated in Ga. Code Ann. 24-1601, as amended, by the 1967 General Assembly, Op. Att'y Gen. 1952-53, p. 314; Op. Att'y Gen. 1952-53, p. 315; and Op. Att'y Gen. 1957, p. 52. Also see: Ormond v. Ball, !20 Ga. 916 (1904). Thus, if the justice issuing a criminal warrant also is the officer before whom the defendant is taken for an inquiry that justice may legally charge for the duties performed. This charge may be for items such as the $1.00 allowed for docketing the case, and $.50 for each time he files any papers in the case. It is true that the statute is not completely clear on the latter point for it could be argued that the justice of the peace is allowed only $.50 for filing all papers in each case. However, when interpreting a statute one must look at ". . . the old law, the evil and the remedy." Ga. Code Ann. 102102 (9) and Grazan v. Heery, 183 Ga. 30 (2) (1936). By the 1967 amendment it is apparent that the legislature intended to increase the fees allowed to a justice of the peace. The old law (Ga. Code Ann. 24-160 I) contained the same terminology "_ . . filing papers in any case . . ." but provided for $.25 as the legal charge. It is my opinion that the legislature did not intend by the 1967 amendment to allow a justice of the peace only $.50 for all papers filed in any case, rather it intended to allow $.50 each time any papers were filed in each case. Thus, in reply to your question as to the total charges for nonUniform Act criminal warrants, as well as Uniform Act criminal warrants, the answer depends upon the activity in the case pursuant to the above discussion. For the issuance of the warrant under the Uniform Act the justice of the peace is allowed to charge only $.50 and for a non-Uniform Act criminal warrant he may legally charge only $4.00. However, it is my opinion that these two charges are not inclusive of the charges allowed. Since a justice of the peace is paid according to the work necessary in any one case, it would seem inconceivable that the legislature should intend for a justice of the peace to charge the above-stated sums for the entire case regardless of the amount of work necessary in each individual case. In some 322 cases it may be that the justice of the peace only issues the warrant and in such cases he is permitted only the allowable fee for issuing said warrant. However, in other cases there may be a necessity for various other activities in the case for which the justice of the peace is entitled to charge according to the 1967 amendment. Enclosed for your use and information is a copy of Act No. 322 as passed by both the House and the Senate and approved by Governor Maddox. fYom this act a determination can be made as to the charges a justice of the peace may legally make for performing the various duties of his office. OPINION 67-239 (Unofficial) June 28, 1967 You have raised certain questions relating to Ga. Laws 1967, pp. 2180-2185, by which certain provisions of the Georgia Election Code were incorporated into the Charter of the City of Macon. Your first question is whether, in view of the provision of the Election Code that it shall not apply to municipal elections, the said amendment of the Charter of Macon constitutes special legislation in conflict with general legislation, in violation of the State Constitution. As you have noted, Ga. Code Ann. 34-102 provides that: "This Code shall apply to any general or special election in this State to fill any federal, State or county office, and to any general or special primary to nominate candidates for any such office ... ; provided however it shall not apply to any municipal primary or election." The Constitution, Art.l, Sec. IV, Par. I, provides that: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing generalla w." It is my view that the proviso that the Election Code shall not apply to any municipal primary or election is a limitation on the application of the Election Code and not a prohibition. Furthermore, the general law in this instance, to wit: the Election 323 Code, does not make provision for municipal elections. If it were to be said that the proviso in Ga. Code Ann. 34-102 were a provision made by general law as to municipal elections, then all local laws relating to general elections would be invalid. Such a situation would be intolerable. Thus, it is my opinion that the Georgia Election Code is not such a general law with respect to municipal elections as would invalidate special laws on that subject. Section llA of the Macon Charter, as amended, provides that there shall be a primary for the purpose of nominating candidates for mayor and aldermen on a certain date, and that the primary shall be conducted in accordance with rules and regulations promulgated by a bipartisan committee. Section 11 B of the Charter, as amended, provides for the creation of an election board to supervise all city general elections and to certify the returns and declare the winner. Section IIC of the Charter, as amended, provides that the provisions of the Georgia Election Code relating to the nomination of candidates shall apply to city elections, except where the provisions of the Charter differ from the Election Code. Section 120 of the Charter, as amended, provides that the provisions of the Election Code governing the conduct of elections shall apply to city elections, except where the provisions of the Charter differ from the Election Code. Thus, it appears that the provisions of the Election Code relating to the "nomination of candidates" shall apply to city elections, except where the provisions of the Charter differ from the Code. To the extent that the Georgia Election Code provisions relating to the nomination of candidates would not otherwise apply to city elections, it would appear that the primary election committee created by Section II A of the Charter would have the authority to promulgate rules and regulations applicable thereto. To avoid confusion, it might be desirable for the bipartisan primary committee to adopt rules and regulations consistent with the provisions of the Election Code relating to the nomination of candidates, so that the subject of primaries would be adequately covered, either by the Election Code or by the rules and regulations of the primary committee. Regarding the "nomination of candidates" and "conduct of elections", enclosed you will find copy of letter dated June 8, 1967, 324 from me to the Secretary of State. In this connection you will note that the subject of qualification fees is covered in Ga. Code Ann. 34-1004, which is a part of the Chapter of the Code relating to "Nomination of Candidates". You will note further that the last sentence of Ga. Code Ann. 34-1004 provides that candidates nominated in primaries held by political parties are not required to pay qualification fees. You have pointed out that interpolation of the Election Code will be necessary for it to apply to the city election, and that if such interpolation is not made, there will be no regulations covering the situation. Certainly, it was not the legislative intent to preclude the holding of a city election by failure to make adequate provision therefor, and thus it is my opinion that such interpolation is necessary under the circumstances. OPINION 67-240 June 29, 1967 You refer to approval by the Joint Fiscal Affairs Subcommittee of the General Assembly, subject to a ruling of this office, of a transfer between objects within the State Department of Education. You state that the transfer, which is in the amount of$44, 149.00, is to be made from "operating expenses" to "grants for educational television" (ETV). The purpose of the transfer is to enable the State Department of Education to make payment to the Atlanta Board of Education in accordance with the terms of a contract providing for the cooperative use by the State Department and the Atlanta Board of ETV facilities and materials. You state that the General Assembly appropriated money for this particular purpose (i.e. the ETV contract with Atlanta) for fiscal 1968 but not for fiscal 1967. You request an opinion regarding the legality of this transfer in light of Ga. Laws 1967, pp. 722-25, which provides: "Section 6. The Fiscal Affairs Sub-Committee shall meet jointly as one committee at least once each quarter, or oftener, at the call of the Governor for the purpose of reviewing and approving budget object transfers recommended by the Governor which shall not be made without the approval of at least eleven (II) members of such committees sitting jointly; and provided further that no funds whatsoever shall be transferred for use in initiating or commencing any new 325 program or activitiy not currently having an appropriation or which would require operating funds or capital outlay funds beyond the biennium in which such transfer is made." (Emphasis added). OPINION In my opinion the transfer in question is not violative of the statutory provision cited. DISCUSSION There would not appear to be any question of the authority of the State Board of Education to enter into a contract with the Atlanta Board of Education respecting the cooperative use of ETV facilities and materials by the parties. The broad general power of the State Board of Education to adopt such policies as it believes will assure a more economical and efficient operation of any phase of public education, see Ga. Code Ann. 32-603, is fully applicable to ETV. Indeed Ga. Code Ann. 32-408.1 expressly provides that the State Board is: "authorized to enter into agreements with other agencies, persons, firms or corporations for the production and/ or transmission of educational television programs," as well as to own, operate, maintain and manage television stations, transmission equipment, etc. itself. The only question, as I see it, is whether this particular expenditure to implement the Atlanta contract must be viewed as an expenditure for a "new program or activity," or, in other words, for a program or activity wholly distinct from the various other ETV operations already being performed by the State Department pursuant to Ga. Code Ann. 32-408.1. I am informed by officials of the State Department of Education that such other ETV operations, including construction of and broadcasting from ETV stations throughout the State, are now, and for some years have been, supported by State appropriation. Assuming the accuracy of this information and looking at the instant Atlanta contract to see whether it is in any way related to existing ETV operations of the State Department, it would seem to me to be significant that the contract shows on its face that it is designed to make the Atlanta station "an active participant in Georgia Educational Television Network." Because of this and upon review of the contract generally, I am at a lo,, to see why a distinction should be drawn 326 between the operation of this station, which is brought into the statewide network by means of a contractual arrangement, and those which became a part by other means (e.g. State construction). To me it seems that the "program or activity" involved is the State Board's operation and maintenance of a state-wide ETV network pursuant to the powers vested in it by Ga. Code Ann. 32-408.1, and that this particular expenditure to implement the Atlanta contract and bring the Atlanta facilities, properties and materials into the system is nothing more than an expansion of this already existing program. For the above reasons (and based upon the factual information furnished me), I consequently conclude that the transfer in question would not be violative of the statutory provision you mention. OPINION 67-241 June 30, 1967 You requested my opinion as to the legality of a transfer of funds between budget object classifications proposed by the State Game and Fish Commission, the funds in question to be shifted from object class Capital Outlay to the object classes of Operating Expenses and Personal Services to provide for employment of additional personnel. The relevant section of the current General Appropriations Act in conjunction with the recently enacted law establishing fiscal affairs subcommittees in both Houses of the General Assembly does allow the transference of funds between budget object classifications subject to certain specific limitations. Ga. Laws 1967, pp. 41, 81-82, p. 722. Applicable to the situation in question is the requir.ement that no transfer can take place which would require operating funds or capital outlay funds beyond the current biennium. Ga. Laws 1967, p. 82. It is my view that the hiring of additional personnel, in light of the laws protecting the employee in his position, would constitute an obligation of the State's funds extending beyond the biennium. Ga. Laws 1943, p. 71 as amended; Ga. Code Ann. Ch. 40-32. Therefore, it is my official opinion that the State Game and Fish Commission cannot legally transfer funds in the fiscal year 1968 appropriations from the object class Capital Outlay to the object classes of Operating Expenses and Personal Services to provide for the employment of additional personnel. 327 OPINION 67-242 June 30, 1967 You requested an official opinion as to whether or not a member of the State Election Board elected to such Board by one of the Houses of the General Assembly may, under the laws of this State, accept employment as a Research Assistant by the Institute of Law and Government of the University of Georgia, a branch of the Regents of the University System of Georgia. I am informed that the position of Research Assistant will not be one of full-time employment, but will be part-time only. Pursuant to Ga. Code Ann. 34-205, each member of the Board, except the Secretary of State, receives a per diem of $25 for each day spent in the work of the Board and necessary traveling, food and lodging expenses incurred in the performance of duty. Such per diem and expenses are paid by the office of the Secretary of State. Although two of the Board members are elected by the Houses of the General Assembly (one from each House), they do not, in my opinion, become a member of the Legislative Branch of Government. Thus, the prohibition of Article Ill, Section IV, Paragraph VI of the Constitution, and Code Ann. 26-509, does not apply. I have reviewed provisions of law possibly applicable to such employment, to wit: Ga. Code Ann. Ch. 26-50 and Ga. Code Ann. 89-913 et seq., and. do not find such employment to be prohibited. Ga. Code Ann: 26-5004 is not applicable because it rdates to business entities selling property, not services, to the State. Ga. Code Ann. 89-913 is not applicable because it applies to full-time employees, and neither the position of Research Assistant nor the position as member of the State Election Board is full-time. Thus, it is my opinion that the laws of this State do not prohibit the holding of the two positions indicated. OPINION 67-243 June 30, 1967 In your letter you discuss a problem created by the fact that one member of your county school board, whose official term commenced September 8, 1964, and is to run until March 16, 1969, 328 is a career soldier, currently on an extended tour of duty in Germany, who has not attended a board meeting since December, 1965. You state that persons residing in the area wherein the absent board member resided are complaining of their lack of representation on the board. OPINION It is my opinion that the extended absence of the member to whom you refer, especially when coupled with uncertainty as to whether he ever will return, is sufficient grounds for the county board of education to declare that a vacancy exists. Assuming that no special provision of law exists respecting the filling of school board vacancies in Long County, the Board would thereupon be authorized to appoint a successor who would hold office until the next county grand jury convenes, at which time the grand jury would appoint a successor to fill the unexpired term. DISCUSSION Article VIII, Section V, Paragraph I of the Georgia Constitution [Ga. Code Ann. 2-6801] declares in pertinent part: "In case of a vacancy on said Board by death, resignation of a member, or from any other cause other than the expiration of such member's term of office, the Board shall by secret ballot elect his successor who shall hold office until the next Grand Jury convenes, at which time said Grand Jury shall appoint the successor member of the Board for the unexpired term." [Emphasis added]. In the absence of any information to the contrary, I assume the Long County Board of Education is a board appointed by the Long County Grand Jury in accordance with Article VI I I, Section V, and that the above cited portion of said constitutional provision relating to vacancies is also applicable to Long County. While it is true that the term "vacancy" is probably not capable of precise definition, and while it is also true that a mere temporary absence would not ordinarily create a vacancy, see e.g. 67 C.J.S., Officers 50 p. 209, I am of the view that a prolonged absence, such as the extended military duty you refer to, especially where coupled with a very real possibility that the individual in question never will return, would constitute a vacancy. This view is in my opinion supported not only by the public policy reason that citizens are entitled to have persons holding public office to administer said 329 offices and discharge the duties thereof in fact as well as in law, but also by the language employed by the Supreme Court of Georgia in Pittman v. Ingram, 184 Ga. 255, 258 (1937), where the Court construed the term "vacancy" as applied to an official position to mean: "an absence of any one to hold the office and discharge its duties." It is also noteworthy that in enacting a general statute of purely local effect in 1943, the General Assembly expressly referred to the situation whereby a "vacancy" results from the official's departure to serve in the armed forces of the United States. See Ga. Laws 1943, p. 592. OPINION 67-244 July 6, 1967 You ask whether or not a license to carry a pistol authorizes the carrying of a pistol at any place within the State of Georgia. It is unlawful for a person to carry a pistol outside of his home or place of business without first taking out a license. The license to which you refer is obtained from the ordinary of the county in which the licensee resides. Ga. Code Ann. 26-5103. The license to carry a pistol authorizes the licensee to carry a pistol in an open and fully exposed manner at any place at which the carrying of a pistol is not prohibited by law. For example, it is a misdemeanor to carry a pistol into a court of justice, a place of public worship, or to any public gathering. Ga. Code Ann. 265102. I wish to further call your attention to the fact that a license to carry a pistol does not authorize the carrying of a concealed weapon. Sockwell v. State, 27 Ga. App. 776 (1921). OPINION 67-245 (Unofficial) July 6, 1967 In your letter you requested an official opinion on whether or not the State of Georgia grants reciprocal rights to foreigners to engage in the exploitation of natural resources or in the operation of public utilities within the State. With few exceptions, Georgia laws do not discriminate against foreign citizens, corporations or associations. 330 Some pertinent provlSlons of the Georgia Code which tmpose restrictions on business activities are as follows: I. Ga. Code Ann. 22-1504, states that no foreign corporation can own more than 5,000 acres of land except upon the condition of becoming a corporation under the laws of this State or domesticated under the laws of this State: Provided that this section shall not apply to any foreign corporation engaged in the business of lending money on real estate security, nor to any such corporation holding a lien upon real estate to secure the payment of any debt, when s~id corporation, in order to prevent loss, is compelled to become the purchaser of lands covered by deed or mortgage to secure a loan. The above benefits shall not apply if the foreign corporation lends money in Georgia at a greater rate of interest than eight per cent. The prohibition contained in this section does not apply to foreign corporations owning oil, sulphur, coal, gold, lead and other mineral deposits despite the fact that rights or interests in such minerals are interests in land. 2. Under Ga. Code Ann. 93-307, the Public Service Commission has general supervision of various public utilities such as telephone and telegraph companies and gas or electric light and power companies. Of the major public utilities, the only distinction between resident corporations and alien corporations appears in Ga. Code Ann. 104-10 I, which requires five or more of the persons who propose to incorporate a telegraph company to be citizens of the United States. Other than the latter restriction, diligent research has failed to reveal any areas in which reciprocal rights are denied to Philippine citizens to exploit natural resources and operate public utilities within the State. Furthermore, Ga. Code Ann. 79-303, grants aliens all the rights of other citizens of other States resident in this State. Therefore, it is our opinion, with certain minor exceptions such as Ga. Code Ann. 104-101, that Philippine citizens are permitted under Georgia law to exploit natural resources and operate public utilities on the same basis as American citizens, corporations or associations. 331 OPINION 67-246 (Unofficial) July 7, 1967 In your letter you stated that boys had been entering the enclosed property surrounding your house for the purpose of stealing apples and destroying tomato plants. The boys' actions clearly constitute a trespass. The law provides that the term "trespass" "comprehends any misfeasance, transgression, or offense which damages another's health, reputation or property", Ga. Code Ann. 102-103 (Emphasis added), which includes "the taking and carrying away or attempting to take and carry away any article or property of any value whatever from the land, enclosed or unenclosed, of another without the consent of the owner." Ga. Code Ann. 26-300 I. In your letter you also stated that you earn your living by raising apples and tomatoes. If the damage done by the boys was substantial, you may consider bringing a civil action against them for damages. This, of course, requires that you know the identity of the boys involved. If you do not know the identity of the boys, the only solution to your problem seems to be through enforcement of criminal statutes. The law provides that "any person who shall wilfully enter, go upon, or pass over any land of another, after being personally forbidden so to do by the owner or person entitled to the possession for the time being, or authorized agent thereof, shall be guilty of a misdemeanor, and shall be punished as for a misdemeanor." Ga. Code Ann. 26-3002. Also, "any person who shall commit a trespass by wilfully and maliciously severing from the land of another any produce thereof shall be guilty of a misdemeanor." If the East Point or Fulton County police are unable or unwilling to assist you in this problem, I can only suggest that you bring the matter to the attention of the Fulton County grand jury. The erection of "Posted" or "No Trespassing" signs on your property is not a prerequisite to enforcement of civil or criminal sanctions against trespassers. The only value of such signs would be to inform the boys, or others, that you deny permission for them to be on your land. Such signs may be purchased at most hardware 332 and department stores, and need be only of such size and location as to inform would-be trespassers that permission is denied. OPINION 67-247 (Unofficial) July7, 1967 You requested a statement indicating whether Philippine. citizens, or corporations or associations owned or controlled by Philippine citizens, are permitted under Georgia law to engage in certain business activities on the same basis as American citizens. With few exceptions, Georgia laws do not discriminate against foreign citizens, corporations or associations. Ga. Code Ann. 22-1504, concerns the disposition, exploitation, development and utilization of natural resources. This section states that no foreign corporation can own more than 5,000 acres of land except upon the condition of becoming a corporation under the laws of this State or becoming domesticated under the laws of this State: Provided that this section shall not apply to any foreign corporation engaged in the business of lending money on real estate security, or to any such corporation holding a lien upon real estate to secure the payment of any debt, when said corporation, in order to prevent loss, is compelled to become the purchaser of lands covered by deed or mortgage to secure a loan. The above benefits shall not apply if the foreign corporation lends money in Georgia at a greater rate of interest than eight per cent. The prohibition contained in this section does not apply to foreign corporations owning oil, sulphur, coal, gold, lead and other mineral deposits despite the fact that rights or interests in such minerals are interests in land. Ga. Code Ann. 79-303, states as follows: "Aliens, the subjects of Governments at peace with the United States and this State, as long as their Governments remain at peace, shall be entitled to all the rights of citizens of other States resident in this State, and shall have the privilege of purchasing, holding and conveying real estate in this State." Therefore, the State of Georgia grants reciprocal rights to foreigners in owning land. 333 Under Ga. Code Ann. 56-301, "an alien in~urer is one formed under the laws of a country other than the United States." While the Code does distinguish between foreign and alien insurers, diligent research has failed to reveal any differentiation in the authorization of foreign or alien insurers or in investment therein. It should be noted, however, that the Code does restrict the right to be an agent, solicitor, broker, counselor and adjuster of casualty, surety and allied lines of insurance. For example, Ga. Code Ann. 5o-803( I), requires such an agent or broker to first procure a license from the commissioner. Under Ga. Code Ann. 56-804(b), to obtain a license, "one must be a citizen of the United States and a resident of this State who will reside and be present within this State for at least six months of every year." In regards to your request concerning "other business activities," I have been unable to find any discriminating laws except, perhaps, the following: (a) Ga. Code Ann. 84-2003 "A foreigner, not a citizen, shall not be granted a license to peddle, unless he shall have declared his intention to become a citizen, and he shall swear to such fact instead of that he is a citizen." (b) Ga. Code Ann. 84-1322 "The State Board of Pharmacy Examiners shall not issue a license to practice pharmacy in this State to any person who was not born or naturalized in the United States, or who is not a citizen of the United States." Ga. Code Ann. 84-925 establishes similar requirements to practice medicine. Under Ga. Code Ann. 9-104, "Aliens who have been two years resident in the State and have declared their intention to become citizens, pursuant to the Act of Congress, are eligible to admission as attorneys at law." The Public Service Commission has general supervision over various public utilities such as telephone and telegraph companies and gas or electric light and power companies. Of the major public utilities, the only distinction between resident corporations and alien corporations appears in Ga. Code Ann. l04-101, which requires five or more of the persons who propose to incorporate a telegraph company to be citizens of the United States. 334 Other than the few exceptions noted above, research has failed to reveal any areas in which reciprocal rights are denied to Philippine nationals. OPINION 67-248 July 10, 1967 You wrote regarding problems which have arisen in connection with the Georgia Education Authority's (Schools') financing of. the proposed educational television production center in Atlanta. As you note in your letter, Mr. John Sims, Director of the Authority, has prepared a checklist of items which must be cleared up before the Authority will issue its invitations to bid. A copy of this checklist has also been furnished this office. You may be assured that we shall do our utmost to expedite the handling of those items on the checklist which involve legal matters. On the other hand, it is noted that certain items on the checklist pertain to matters which are of an administrative rather than legal nature. An example would be those items which request copies of resolutions of the State Board of Education (See e.g. items l, 7 and 8). I presume that these matters will be tended to by the Department of Education. Speaking generally of transactions between the Authority and Department of Education pertaining to construction, I think it might be well to note that while meeting the Authority's regulations and policies requires that the Department utilize the services of various professional persons, including surveyors and architects as well as attorneys, the primary responsibility for compliance with these policies and regulations rests upon those members of your staff who are directly concerned with the capital improvement being financed by the Authority. This is shown, for example, in the material received from Mr. Sims along with his checklist. The publication of the Authority entitled "The Fox" is particularly valuable reading and should be studied in detail by those members of your Department who are or may become involved in Authority financed construction. In detailing the procedure to be followed, not only does this publication point out such fundamentals as the necessity of furnishing the architect with a boundary line survey showing all easements and encumbrances thereon, but it even sets forth form letters to be used in such essential work, all of which 335 should properly be completed prior to the conveyance of the property to the Authority. The Commitment Letter and other material which the Authority forwards should also be studied and carefully followed. The Law Department is, of course, at your disposal whenever compliance with the Authority's policies or regulations requires specific legal advice or legal action, such as the drafting of deeds or other necessary legal instruments, and the procuring of title insurance (as well as the required certificate of title from the attorney employed by the insurance company in connection with its issuance of a title policy). With respect to the transaction at hand (i.e. the Atlanta Production Center), the legal aspects of the matter are being handled by Mr. AI Evans. It is my understanding that he has already written to Lawyers Title Insurance Corporation respecting those items of the checklist relating to the title insurance binder and certificate of title prepared by the attorney which that company employed in connection with the title search it requires prior to issuance of a policy of title insurance. I am certain that Mr. Evans will be happy to confer with you or any other member of your staff in connection with this matter. OPINION 67-249 (Unofficial) July 10, 1967 You pose several questions relating to the filling of a vacancy in the office of school superintendent of the Dade County School System. The filling of a vacancy in the office of county school superintendent, in the absence of any local constitutional provision or statute, is primarily controlled by Ga. Code Ann. 32-1003, the relevant provisions of which declare: "In the event of a vacancy by death, resignation, removal from office, or from any cause whatever, in the office of county superintendent of schools in any county . . . the vacancy shall be filled as follows: I. In the event of a vacancy by death, resignation, removal from office, or from any other cause whatever, and there is less than six months remaining in the unexpired term, the 336 county board of education shall appoint an acting county superintendent of schools for the unexpired term. 2. In the event that there is more than six months remaining in the unexpired term, the county board of education shall appoint an acting county superintendent of schools to serve for a period of 30 days and until the vacancy can be filled as herein provided. In such event, it shall be the duty of the ordinary to issue a call within lO days after the vacancy occurs for an election to fill the unexpired term. Such election shall be held not less than lO days nor more than 20 days after the issuance of the call therefor. The person receiving the highest number of votes at such election shall serve as county superintendent of schools for the remainder of the unexpired term. In the event of a tie vote in any such election, the ordinary shall call, within five days thereafter, an election to be held within 10 days after the call until a choice is made." On the other hand, an examination of our general election laws reveals that with regard to two of your questions, a cont1ict exists between the foregoing language and the newer "Georgia Election Code." First of all a provision of said Code dealing with the conduct of special elections, to wit: Ga. Code Ann. 34-806, provides in relevant part: "At least 30 days shall intervene between the call of a special election and the holding of the same." (Emphasis added). It seems obvious that this provision of the more recently enacted election code cannot be reconciled with the clause "not less than 10 days nor more than 20 days after the issuance of the call therefor" which is contained in the older statute, to wit: Ga. Code Ann. 321003. This being so the newer provision, under well settled rules of statutory construction, must control, and, to the extent of the conflict Ga. Code Ann. 34-806 supersedes Ga. Code Ann. 321003. To illustrate, should the anticipated vacancy occur on August Ist, your call for a special election to fill the vacancy (assuming that more than six months remained in the unexpired term), must still issue within lO days, in conformity with Ga. Code Ann. 321003. The date of the election, however, is no longer controlled by this statute. Pursuant to Ga. Code Ann. 34-806, it must be held after at least 30 days have intervened between the date the call is issued and the day upon which the election is held. Thus if the call 337 for a special election were to be issued immediately upon the occurrence of the vacancy (i.e. August I, 1967), the special election could not be held on August 30th or even August 31st. The earliest date upon which the election could be held would be September I, 1967. This same situation applies to your question as to whether the election of a superintendent will require that the successful candidate receive a majority of the votes cast (as indicated by Ga. Code Ann. 34-1514) or a mere plurality (as indicated by Ga. Code Ann. 32-1003). Here again the earlier "plurality" provision of Ga. Code Ann. 32-1003 cannot be reconciled with the "majority vote" clause of Ga. Code Ann. 34-1514, and, for the reasons already discussed, Ga. Code Ann. 34-1514 must therefor prevail to the extent of the conflict. You also refer to the qualifications of the office of county superintendent of schools set forth in Ga. Code Ann. 32-1004 (E.g. education, teaching experience, etc.), and ask how you may ascertain whether an individual seeking to run is qualified. It is noted that this same code section provides that before becoming eligible to qualify for election, candidates for the position of county school superintendent: "must file with the State Board of Education a certificate under oath, showing qualification hereunder." I am certain that the State Department of Education would be happy to furnish you with such information as they have concerning what, if any, certificates have been filed by the various candidates. In addition, it is noted that Ga. Code Ann. 341001 (e), requires the candidates to file with your office an affidavit setting forth various items of information, and swearing, inter alia, that they are eligible to hold the office sought. The affidavit must also contain such other information as you may prescribe. You could, should you so desire, properly require that the affidavit state that said candidates possess the specific qualifications mentioned in Ga. Code Ann. 32- 1004. This last answer would also constitute a reply to your inquiry as to whether Ga. Code Ann. 34-100 I, has been repealed. To the best of my knowledge, it has not and each candidate would have to file his notice of candidacy, accompanied by the required affidavit, at least 15 days prior to the election. 338 Finally, you ask whether absentee ballots will have to be made available for this election. My reply is in the affirmative. The rights of absentee electors to cast absentee ballots in accordance with Ga. Code Ann. Ch. 34-14, so far as I am aware, are fully applicable to a special election to fill a vacancy in the office of county school superintendent. OPINION 67-250 (Unofficial) July 11, 1967 You have asked if income received by a non-resident as interest on a certificate of deposit issued by a Georgia bank would be subject to the Georgia Income Tax Act. This question is controlled by Ga. Code Ann. 92-30020) (defining "taxable non-residents"), 92-3112 (dealing wtth "nonresidents"), and 92-3113 (dealing with the allocation and apportionment of income where the taxpayer's income is earned partly within and partly without the State of Georgia). As a general proposition, a non-resident individual is taxable in Georgia only on income which is received from regularly engaging in owning property or doing business within this State. Generally speaking, income from intangibles is taxed at the domicile of the owner or recipient of income from the intangibles. However, income derived from intangibles, which intangibles were acquired from property held in GeNgia or as a result of business regularly conducted in Georgia, would be taxable in Georgia. Accordingly, the income received by a non-resident from a certificate of deposit issued by a Georgia bank would not be taxable in Georgia under the Georgia Inco me Tax Act unless the certificate of deposit had been acqt1ired as income from property otherwise held in Georgia or as the result of a non-resident regularly conducting a business dealing in such intangibles within the State of Georgia. Otherwise, an individual who incidentally purchases a certificate of deposit issued by a Georgia bank would not be taxable under the Georgia Income Tax Act on the interest received from such certificate of deposit. OPINION 67-251 (Unofficial) 339 July II, 1967 The Code section you refer to is part of a series of sections that exempt certain disabled veterans from the payment of city business licenses. Ga. Code Ann. 84-2012, in the first paragraph thereof, provides, as follows: "No person shall be entitled to a license to peddle, conduct business or practice the professions or semi-professions under this law ( 84-20 II through 84-20 19) until it has been made to appear to the issuing authority that the person making application therefor is a resident of this State; that the income of such person is such that he or she is not liable for the payment of State income taxes." (Emphasis added.) In order to answer your question, it is necessary to make the distinction between persons subject to the Georgia income tax law and persons liable for the payment of taxes thereunder. Under Ga. Code Ann. 92-3101, an income tax is imposed upon every resident of the State, which tax is to be levied, collected and paid annually with respect to the entire net income of the taxpayer. Ga. Code Ann. 92-320l(b) authorizes the filing ofjoint returns by husbands and wives. However, when a joint return is filed, both the husband and wife are liable for the payment of the tax called for in the return. Accordingly, although a resident may be subject to the tax, he is not liable for payment thereunder unless his net income is such that the tax is imposed. It is clear that the legislature intended to exempt from the payment of city business license only those disabled veterans whose income is such that they incur no tax liability thereon. However, when such a person files a joint return with his wife and the return called for the payment of state income tax, then such a disabled veteran becomes subject for the payment of city business license even though his income alone, if a single return has been filed, would exempt him from such payments, and the same is true whether he receives a partial refund of State income taxes paid or otherwise. 340 OPINION 67-252 (Unofficial) July 11,1967 You requested a summary of law of Georgia relating to tidelands, submerged land and navigable waters. The subjects have been looked into and the following represents a review of the relevant law of this State. I. Tidelands. The tidelands are defined as the beds of all waters where the tide regularly ebbs and flows. The rights of ownership of tidelands by those holding title to adjacent lands will vary depending upon whether the particular tide water is navigable or not. A navigable tide water is one which is in fact used for the purposes of navigation or is capable of bearing at mean low tide boats loaded with freight in the regular course of trade. Navigation in this sense does not include the rafting of timber or the passage of small boats. Ga. Laws 1902, p. 108; Ga. Code Ann. 85-307, 85-308. Rowers v. Person, 144 Ga. 23 (1915). The rights and boundaries of owners of land adjacent to or covered in whole or in part by navigable tide waters extends to the low water mark in the bed of the water. If the water is not navigable as previously defined, ownership will extend to the main thread or channel of the water as that channel remains constant or changes in gradual fashion; but if a new channel occurs the original line, if capable of identification, remains the boundary. Ga. Laws 1902, p. 108, Ga. Code Ann. 85-307, 85-309. Hendrix v. Cook, 4 Ga. 255 (1848), Jones v. Water Lot Company ofColumbus, 18 Ga. 539 (1855). As a general rule these ownership rights in adjacent tidelands are for all purposes except for the taking of fish other than oysters, clams and other shell fish. The owners are also prohibited from preventing the free use of the tide water by others for purposes of passage and the transportation of freight. Ga. Laws 1902, p. 108; Ga. Code Ann. 85-307, 85-309. The previously-noted fishing rights of property owners adjacent to title streams is further confirmed by a provision of the Game and Fish laws of Georgia which subjects any party violating these rights to conviction of a misdemeanor offense. Ga. Laws 1955, pp. 483, 341 526; Ga. Code Ann. 45-711. Another Game and Fish statute states that if the adjacent property is in the form of a completely owned island, then ownership of tidelands in the form of private game preserves gives the owner in question the complete right to control all fishing within the specified title waters. Ga. Laws 1955, pp. 483, 526; Ga. Code Ann. 45-709. Some State regulation of the tidal areas results from the statute creating the Georgia Intra-Coastal Waterway Commission which provides for easements, right-of-ways and spoil disposal areas for the United States Government for the Intra-Coastal Waterway and its tidal tributaries by means of donation, purchase or condemnation and also provides for an immediate remedy and prompt payment to persons suffering damage incidental to the construction and maintenance of water ways. Ga. Laws 1939, p. 331. In concluding this section of the analysis it should be noted that the basic rules delineated above lend themselves to many instances of application involving particular situations. It is also important to point out that much of the subsequent discussion of navigable waters in general is entirely applicable to tidal waters and the tidelands lying beneath them. II. Submerged Lands. There are several State statutes relating to submerged lands and the problems connected therewith. Persons owning property next to water courses can protect their land by constructing levies and ditches so long as it does not place water on the land of the others. Ga. Laws 1855 - 1856, p. 13; Ga. Code Ann. 85-310. Other statutes specifically apply the same prohibition against Hooding adjacent property to canal and navigation companies as well as those engaged in the cultivation of rice. Ga. Laws 1893, p. 81; Ga. Code Ann. 17-106; Ga. Laws 1866, p. 27; Ga. Code Ann. 5-401. On the other hand, the courts in applying the general doctrine of proscription have ruled that the right to place water on the land of another may be acquired by proscription. Ga. Code Ann. 85-409, Phinizy v. City Council ojA ugusta, 47 Ga. 260 ( 1872). Ill. Navigable Waters. The law of Georgia defined the navigable stream as one capable 342 of bearing either for the whole or a part of the year boats loaded with freight in a regular course of trade. The mere rafting of timber or transporting of wood in small boats does not make a stream navigable. Ga. Code Ann. 85-1303. The courts of Georgia have specifically excluded the ocean, its estuaries, arms, bays and inlands from the scope of this definition. Johnson v. The State, 114 Ga. 790 (1902). The most significant aspect of the laws of Georgia governing navigable streams concerns the rights of adjacent owners. ln this regard the basic rule is that the rights of the owner of lands adjacent to navigable streams extend to low water mark in the bed of the stream. Ga. Code Ann. 85-1304. There have been many case decisions and statutes delineating in great detail particular aspects of this right of ownership. It has been held that the right of fishing is not severed from ownership of the fee by a grant which does not by its terms either expressly convey the right or necessarily include it. Thompson v. Tennyson, 148 Ga. 701 (1919). On the other hand the same case decision noted that the grant by an owner of a fee of mill privileges carries the right to reasonable use of the land and water necessary to the operation of the mill but does not by implication convey any fishing privileges. ld. The granting of a Federal license to build wharf does not give the grantee any admissible evidence to show title. Wallace v. Aiken, \36 Ga. 845 (1911). The owners of property adjacent to waterways have the right to construct a bridge or establish a ferry for private use across the particular water course as an appurtenant of their ownership of the land. However the right to establish and keep a public bridge or ferry is a franchise which can only be granted by the State. Ga. Code Ann. 85-1311 thru 1312. It has been held that a private ferry will not be construed to be public simply because the owner occasionally carries others and charges tolls. Greer v. Haucabook, 47 Ga. 282 ( 1872). lncorporated towns have been authorized by statute to prohibit the discharge of ballast into navigable waters whether by parties having an ownership interests in part of the waters or any others. Ga. Code Ann. 98-105. There is also a State statute which prohibits the floating of sawdust in any of the streams of this State and provides criminal sanctions for the enforcement of this law. 343 Ga. Laws 1911, p. 185, Ga. Code Ann. 26-370 I. Another criminal statute applicable to all public waterways expressly prohibits the operation of boats in a negligent manner or while intoxicated. Ga. Laws 1953, p. 55, Ga. Code Ann. 26-7325. Lastly, the Georgia Water Quality Control Act is a series of legislative enactments designed to maintain the purety of the water within the State and sets up the State agency necessary to effectuate this purpose. Ga. Laws 1964, p. 416, Ga. Code Ann. Ch. 17-5. OPINION 67-253 (Unofficial) July 12, 1967 This is in reply to your recent request for an opinion on the following question concerning Ga. Code Ann. 69-904 thru 69912: "After an application for annexation containing a proper description of the property to be annexed has been submitted to the governing body and during or after the public hearing, do the Mayor and Board of Aldermen of the City of Dublin have the authority to decrease the amount of property described in the application and annex this smaller territory in lieu of the larger amount described in the original application?" It is my opinion that the Mayor and Board of Aldermen have no such authority. The governing principle is that grants of power to municipal authorities are to be strictly construed so that the powers included in the grant are limited to those expressly given or necessarily implied. Beazley v. DeKalb County, 210 Ga. 41, 77 S.E.2d 740 (1953); Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953); Georgia Ry. and Power Co. v. R.R. Comm'n of Georgia, 149 Ga. I, 98 S.E. 691 (1919). Nowhere in the sections under consideration is the governing authority of the municipality expressly given the power to make a change in the area of the territory to be annexed. There is no necessity to imply such power since by Georgia Code Annotated Section 69-905 the governing body is given authority to examine the application to determine whether or not it complies with the requirements of the statute and to notify the persons presenting the application of the deficiency. The governing authority is given an additional opportunity to 344 reject the annexation proposal by failing to adopt an annexmg ordinance as is provided in Ga. Code Ann. 69-907. It is therefore my opinion that the governing body, the Mayor and Board of Aldermen, do not have the authority to annex a lesser included portion of the territory described in the original application. OPINION 67-254 July 12, 1967 You requested my opinion as to the legality of including a retired enforcement officer of the Georgia Public Service Commission in the Peace Officer's Annuity and Benefit Fund and if this is not possible, what avenues, if any, are open for raising his retirement pay. The Supreme Court of Georgia has held that inspectors of motor vehicles for hire, employed by the Georgia Public Service Commission under the provisions of Ga. Code Ann. 68-520, 68626 and 68-708, are not "peace officers" as defined by Section 8 of the Act of 1950 (Ga. Laws 1950, p. 50), so as to make them eligible for membership in the Peace Officer's Annuity and Benefit Fund. See Board of Commissioners v. Clay, 214 Ga. 70 (1958). Although Ga. Code Ann. 68-520 and 68-626 were amended subsequent to that decision to authorize enforcement officers to arrest persons found in violation of statutes relating to motor vehicles for hire, it is doubtful that such officers would, even now, qualify as "peace officers" within the meaning of the retirement law since they are authorized to enforce laws relating only to a limited class and have no authority to act as "peace officers" in the general sense. Since the officer in question has already retired, he could not, in my opinion, now meet the requirements for membership in the fund even if he was otherwise qualified. Ga. Code Ann. 78-90 I defines "peace officer" as one "who is employed . . .as such police officer." (Emphasis added.) Ga. Code Ann. 78-908 provides that persons serving as peace officers on April I, 1965, must make application for membership in the fund on or before December I, 1965, or shall forever be ineligible for membership. Your question relative to raising the retirement pay of the retired employee, of course, addresses itself to the General Assembly. Since his pension was fixed by law, however, at the time he retired, 345 a constitutional question would be involved, in my opinion, in any legislation increasing his pension. OPINION 67-255 (Unofficial) July 12, 1967 You requested an opmwn on the liability of Slash Pine Area Planning and Development Commission for the negligence of its own employees or those of the Office of Economic Opportunity. The governing authority of each municipality and countv in Georgia was authorized in 1957, under Ga. Code Ann. 69-1201, to create municipal, county or municipal-county planning commissions. In 1960, this statute was amended to include joint municipal planning commissions and joint county planning commissions such as Slash Pine Area Planning and Development Commission. Since these planning commissions are political subdivisions of the various counties, it is my opinion that Georgia courts will treat them as counties for purposes of tort liability. Ga. Code Ann. 23-1502, provides as follows: "A county is not liable to suit for any cause of action unless made so by statute." For example, Ga. Code Ann. 95-1001, provides in part that " .. .in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges. . . ."Also joint county planning commissions may be held liable under Ga. Code Ann. 69-1204, which provides in part as follows: " . . .The planning com~ission, its members and employees, in the performance of its functions, may enter upon any land, make examinations and surveys, and place and maintain necessary monuments and marks thereon: Provided, however, that the planning commission shall be liable for any injury or damage to property resulting therefrom...." Therefore, excluding Ga. Code Ann. 95-1001 and 69-1204, the Slash Pine Area Planning and Development Commission is not liable for damage to private individuals resulting from the improper performance or nonperformance of duties of its officers, agents or servants. Furthermore, the commission is not liable for the negligent acts of employees of the Office of Economic Opportunity. 346 Although a county is not liable to suit unless made so by statute, Ga. Code Ann. 56-2437, authorizes, but does not require, a municipal corporation, a county or any other political subdivision of Georgia to obtain liability insurance for bodily injury, death or property damages " ...arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this State, under its management, control or supervision, whether in a governmental undertaking or not, and to pay premiums therefor. . . ." When this insurance is obtained, the county's immunity from liability is considered waived to the extent of the amount of the insurance, and neither the county nor the insurer is to plead this immunity as a defense. In view of the foregoing considerations, it is my opinion that Slash Pine Area Planning and Development Commission is liable only for injuries resulting from a defective bridge or the commission's entry upon any land. Furthermore, the commission does not have to take out motor vehicle liability insurance, but it may obtain such insurance if it wishes. OPINION 67-256 (Unofficial) July 13, 1967 It appears that your client, First of Georgia Insurance Company, has some questions concerning the application of the Motor Vehicle Certificate of Title Act and regulations adopted thereunder. You specifically inquire as to the responsibility of the insurance company where an automobile is rendered inoperative, or is a total loss, and settlement is made with the insured based on the difference between the value of the automobile prior to the damage sustained and the salvage value as determined thereafter. Because of the great number of automobile thefts in the State, the legislature in 1965 strengthened Section 20 of the Motor Vehicle Certificate of Title Act (Ga. Laws 1965, pp. 264, 265; Ga. Code Ann. 68-420a). As amended, Section 20 of the Act provided that a vehicle to which an insurance company has taken title in the settlement of a claim for damages shall be deemed to be wreckage or salvage and that such insurance company shall be deemed to be the owner of such vehicle and required to mail within 72 hours the 347 certificate of title to such vehicle and the manufacturer's serial plate to the State Revenue Commissioner. The purpose was to remove all serial plates and to prevent the circulation of titles on wrecked or scrapped vehicles. This would effectively curtail illicit "paper boy salvage operations". That is the use of serial plates from purchased salvage on stolen vehicles, and the rebuilding of the salvage vehicle with parts obtained from a stolen vehicle. The Department of Revenue adopted certain rules dealing with Section 20 of the Act. Rules of Department of Revenue, Chapter 560-10-13, Rules and Regulations of the State of Georgia, Volumn VI,p.357. Department of Revenue Rule No. 560-10-13 .II provides that if an insurance company takes record or legal title or acquires a beneficial interest in a vehicle as a result of a settlement of a claim, the insurance company is deemed to be the owner of such vehicle and is required to surrender the manufacturer's serial plate and certificate of title to the Revenue Commissioner. A beneficial interest is acquired when a total loss insurance claim is reduced by the value of the wrecked vehicle. As you know, usually an insurance company never receives a record title to a wrecked vehicle when a total loss is paid. The insurance company receives bids on the salvage and negotiates the sale of the wrecked vehicle or salvage. To not require an insurance company under these circumstances to remove the serial plates and turn in for cancellation the title to the vehicle would seriously impair the effectiveness of the salvage provision in the Act. Department of Revenue Rule No. 560-10-13.12, which provides for notice of insurance company settlements, specifically applies only when a claim is settled and the record title, legal title, or the beneficial interest in such vehicle is not transferred. Of course, if any person is unable to fully comply with the regulations, he may comply to the extent possible and set forth in writing the reasons for his inability to fully comply. Department of Revenue Rule No. 560-10-13.06 provides that these regulations shall apply to all insurance settlements including any settlements made with parties other than the insured. 348 You mention the possible difficulties involved in obtaining serial plates and title certificates of wrecked or salvage automobiles. The Supreme Court has held in the case of McDonald v. State, 222 Ga. 596 (1966) that title certificates and serial plates on wrecked or salvage automobiles do not constitute property within the protection of the constitutional provisions. A person has no right to this property. Therefore, under the circumstances which you present, r conclude that the insurance company acquires a beneficial interest to these wrecked or salvage vehicles and is charged with the responsibility of turning in the serial plate and certificate of title to the State Revenue Commissioner. Of course, if they are unable to fully comply with these regulations, they may explain such inability as provided in Department of Revenue Rule No. 560-10-13.03. OPINION 67-257 July 14, 1967 This is in reply to your letter of June 21, 1967, in which you asked my opinion as to the effect upon the Department of Agriculture of a recent Supreme Court decision concerning government administrative inspections without a court warrant. With your letter you furnished a copy of a press release issued by the Food and Drug Administration on June 18, 1967, which summarized procedures implemented by the FDA in order to comply with the court decision. The Supreme Court "decision" referred to in the FDA press release is the product of the decisions in Camara v. Municipal Court, 35 U.S.L.W. 4517 (U.S. June 5, 1967) and See v. Seattle, 35 U .S.L. W. 4522 (U.S. June 5, 1967). In the Camara case an inspector of the San Francisco Department of Public Health requested the defendant's permission to enter his apartment for the purpose of making a routine annual inspection for possible violations of the City Housing Code. The Housing Code authorized inspectors to enter any building at reasonable times upon presentation of proper credentials. The defendant refused to admit the inspector without a search warrant, contending that inspection without a warrant and without his consent was a violation of the Fourth Amendment of the United States Constitution. The defendant was arrested and charged with 349 violating the Housing Code by refusal to permit the warrantless inspection. He then brought an action for a writ of prohibition against the criminal court, which was appealed to the Supreme Court after the writ was denied by the highest State court. The Supreme Court held that such administrative searches or inspections, although not conducted for the purpose of obtaining criminal evidence, were nevertheless subject to the safeguard of the Fourth Amendment against unreasonable searches and seizures, as enforced against the states through the Fourth Amendment, and that such searches or inspections could not be conducted without the consent of the property owner or occupant unless a proper warrant was first obtained. In so holding, the court overruled the case of Frank v. Maryland, 359 U.S. 360, which had previously held that warrantless administrative inspections did not violate Fourth Amendment rights because they were part of a regulatory scheme which was essentially civil rather than criminal in nature. In the See case the defendant was convicted of refusal to permit a fire inspector to enter and inspect his locked commercial warehouse without a warrant. The Court held that the principles enunciated in the Camara case were also applicable to administrative inspections of those portions of commercial premises which are not open to the public. The Court stated that no justification existed for relaxing Fourth Amendment safeguards merely because the inspection was directed towards commercial premises as opposed to residential premises. Since these cases are founded upon the Fourteenth Amendment, the holdings are applicable to inspections conducted by your Department, as well as similar inspections conducted by any other state or municipal department or agency. As the Court anticipated, most business proprietors will probably admit inspectors or agents without objection. However, in those instances in which the proprietor refuses permission to inspect any commercial property which is not open to the public it will be necessary to obtain a warrant in order to comply with the holdings in the cases summarized above. The exact nature of the warrant is not specified in the Court's ruling. However, probable cause, as defined in connection with criminal search warrants, will not be required for issuance of the 350 warrant. The warrants contemplated by the Court are clearly of a different nature from those which seek discovery of evidence of criminal conduct. The Court stated that the test should be whether or not the inspection was "reasonable", and that the inspection would be reasonable if legislative or administrative standards are satisfied with respect to the particular property to be inspected. The Court further stated that such standards may be based upon the passage of time between inspections, the nature of the building to be inspected, the condition of the area, or other reasons that may indicate that an inspection is necessary. It is not necessary that the warrant be based upon specific knowledge of the condition of the particular building or business to be inspected or that any information be possessed indicating that violations in fact exist on the premises. Your inspectors or agents should continue on a "business as usual" basis, as noted in the FDA press release, and this Department should be contacted for assistance in the event they encounter situations which will require warrants. OPI~ION 67-258 OMITTED OPINION 67-259 July 17, 1967 You wrote asking whether the Board of Regents may lawfully employ "housemothers" at privately owned, off-campus, student dormitories. As I understand the situation, a private corporation has asked the Board of Regents to employ and supply "housemothers" for a dormitory facility in which the corporation proposes to lease space to students at Georgia State College. It is apparent that, since the lease is to be a private contract between the lessor corporation and lessee student, the authority of the "housemother" over such students will arise from such private contract and not from the Board of Regents. Accordingly, it is my official opinion that the use of public funds for the employment of "housemothers" in the above-stated circumstances would constitute a gratuity in violation of Art. VII, Sec. I, Par. II of the Georgia Constitution (Ga ..\nn. Code~ 2-5402) which provides in 351 relevant part: "The General Assembly shall not ~y vote, resolution, or order grant any donation or gratuity in favor of any person, corporation or association." OPINION 67-260 July 18, 1967 In your letter of June 2, you provided us with the following facts: "On April lO I received a call from Mr. Odis Clay Poundstone, A.I.A., of Atlanta informing me that his late wife had left a note in her Bible to turn over the contents of a suitcase to the Georgia Historical Society and asking if I could send someone to his home to pick up the suitcase and contents. We are frequently called the Georgia Historical Society though there is an agency in Savannah by that name which collects documents and manuscripts and not museum objects. "Mr. Mitchell in my office received the suitcase from Mr. Poundstone, who said that the contents had been in his wife's family for many years and had no value at all to him. In the suitcase were two pistols, a bullet mold, leather cases for the pistols, a Civil War canteen, a gun pouch, two old books and some genealogy papers. When the guns were cleaned and inspected by people who recognized their value, it turned out that one was a Colt- Whitneyville, also known as a ColtWalker, made for Walker of Alamo fame. There were 1000 revolvers made, 75 of which were known to still exist. "This particular gun is in prime condition and is appraised roughtly at $7,500." We were advised by you that the Georgia Historical Commission does not have facilities sufficiently secure to display the subject pistol. In an effort to clarify this matter, we have obtained from Mr. Poundstone, through his counsel, an affidavit reading in part as follows: "My wife, Mrs. Odis C. Poundstone (deceased) left the two pistols and other equipment now in possession of the Georgia Historical Commission to me to give to an historical society. 352 She indicated that she wanted the equipment to be made to the historical society where a Mrs. Blair was employed, which, at that time, l thought was the Atlanta Historical Society. l looked in the phone book for the Atlanta Historical Society. l was unable to find a listing under that name, and, not knowing whether it was part of another organization or no longer in existence, finally called the Georgia Historical Commission. After telling the Georgia Historical Commission about the equipment, a Mr. Mitchell came to my home to pick it up. l asked Mr. Mitchell if Mrs. Blair was connected with his organization. He said that she was not. At that point l was still unsure about the relationship of the various historical societies, and the existence of the Atlanta Historical Society. Before he left with the equipment, he stated that l would receive a written acknowledgment and something for me to sign. l never received any correspondence from the Commission until l called sometime later to request that the guns be returned. "After Mr. Mitchell's visit, l talked with a member of the Georgia Historical Commission and learned that the Atlanta Historical Society and the Georgia Historical Commission are two entirely different organizations, and that Mrs. Blair definitely had not been connected with the Commission. l realized then that l had placed the equipment in the custody of the wrong organization. Desiring to fulfill the wishes of my wife to the best of my ability, I respectfully request the return of the equipment now held by the Georgia Historical Commission." Although your understanding of the facts and Mr. Poundstone's statement of them do not coincide precisely, we do not find any conflict of a material nature. Your Mr. Mitchell may be able to reconcile these matters. The legal question appears to be as follows: ls a unilateral mistake of fact as to the identity of the donee sufficient to prevent there being a completed gift or to justify recision of such a gift? There appears to be no Georgia decision directly in point. The law of mistake is covered in Ga. Code Ann. Ch. 37-2. Most of the cases arising thereunder involve contracts rather than gifts. However, Ga. Code Ann. ~ 34-206 provides that: "In all cases of a 353 mistake of fact material to the contract or other matter ajjected by it, if the party complaining applies within a reasonable time, equity will relieve." (Emphasis added.) The law of gifts is covered by Georgia Code Title 48. Code Section 48-10 I provides that: "To constitute a valid gift, there shall be the intention to give by the donor, acceptance by the donee, and delivery of the article given or some act accepted by the law in lieu thereof." The "intention to give by the donor" could encompass the identity of the donee. The Restatement of Restitution, Sections 26 and 39, shows that a donor is entitled to restitution of the chattels donated where there was a mistake of fact as to the identity of the donee. See also: Williston on Contracts, Vol. V, Sec. 1573; Gifts-Mistakes-Rights of the Donor, Donee and Their Successors in Interest to Relief, Mich. L. Rev. 58:90 (1959); 38 C.J.S., "Gifts", 35. The Supreme Court of Georgia, in Mitchell v. Mitchell, 40 Ga. II (1869), and in Crockett v. Crockett, 73 Ga. 647 (1884), ordered corrections of unilateral mistakes of facts in voluntary (gratuitous) deeds to realty. Based upon the facts as presented to us and upon the foregoing principles of law, it is my opinion that Mr. Poundstone is entitled to the return of the articles described in your letter. OPINION 67-261 (Unofficial) July 19, 1967 You requested an opinion from the Department of Law in which you asked who is responsible for keeping and cleaning the Bleckley County jail and who is responsible for paying for the labor and materials used in such maintenance. It is the responsibility of a County Ordinary or the Board of County Commissioners to provide office supplies in general for the various county offices. Ga. Code Ann. 91-704. As you know, "county buildings shall be erected and kept in order and repaired at the expense of the county, under the direction of the ordinary or other authority, who is authorized to make all necessary contracts for that purpose." Ga. Code Ann. 91-701 (Emphasis added). The business affairs of Bleckley County were long ago placed in the hands of a county commissioner. Ga. Laws, 1913, p. 345 et seq. 354 It is my opinion that the cost for labor and materials used in cleaning the jail should be paid by Bleckley County. While the legislature has not specified with great particularity the official who is responsible for cleaning various portions of county buildings, it is my opinion that it is the duty of the Bleckley Commissioner to make appropriate arrangements for this, since he is charged with keeping county buildings in order. OPINION 67-262 (Unofficial) July 19, 1967 You inquired regarding the effect of repeated admissions to and releases from Central State Hospital upon the legal status of a patient who had previously been adjudicated insane. The patient was admitted for the fourth time, voluntarily, on December 12, 1963. She was discharged and diagnosed as "restored" on July 30, 1964. She was admitted for the last time on August 10, 1964, under the provisions of the 1964 Public Health Act (1964, Ga. Laws, p. 499, Ga. Code Ann. 88-501 ). She is presently classified as a resident patient of the hospital. You asked specifically whether or not this patient is still legally insane. First, it should be pointed out that the present trend of the law is away from a strict sane-insane approach to the problem of mental condition. The 1964 Act makes separate provisions for determination of mental capacity for purposes of appointment of a guardian, Ga. Code Ann. 49-106, 49-604, and for purposes of admission to mental institutions, Ga. Code Ann. 88-501, et seq. I conclude therefore, that the admission of this patient in 1964 amounted to no more than the determination that she is mentally ill and requires hospitalization. It is immaterial whether her admission was voluntary or involuntary. If she was voluntarily admitted, this determination was made by hospital authorities. Ga. Code Ann. 88-502. If she was admitted involuntarily, the decision was made by a commission under the direction of a court of ordinary. Ga. Code Ann. 88-506. The provisions of the 1964 Act apply only to persons who are determined to be "mentally ill" as defined in Ga. Code Ann. 8850 I(a). "Insane," on the other hand, is defined in Ga. Code Ann. 102-103 as being synonymous with the terms "lunatic," "non 355 compos mentis" and "of unsound mind." It would seem, therefore, that the terms "insane" and "mentally ill" are not the same. However, Ga. Code Ann. 49-606 provides: "No guardianship or hospitalization in a psychiatric hospital. .. , 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 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 [Emphasis added]." Detail provisions for the discharge of patients and for the determination of whether or not a patient has been restored to mental health are set out in Ga. Code Ann. 88-522. In particular, subparagraph (a) provides: "In the event a person who has been involuntarily hospitalized in a psychiatric hospital pursuant to any provisions of this Chapter. or any other provisions oflaw and a guardian was not appoihted for such person, and such person is released from said psychiatric hospital under order of the superintendent or chief officer thereof as being restored to mental health, the superintendent . . . shall, within five days from the date of such release, transmit a copy of such .order to the ordinary of the county from which said person was involuntarily hospitalized. Thirty days from the date of receipt of such order by the ordinary, such person shall be deemed to have been legally restored to mental health and it shall be the duty of the ordinary to issue an order to that effect ... [Emphasis added]." Other subparagraphs of 88-522 set out the provisions for conditional release of patients. I conclude from this section and from the statement of legislative 356 intent that a determination that this patient is no longer mentally ill, whether that determination be by operation of law or by a commission of the Court of Ordinary, Ga. Code Ann. 88-522, will vitiate the prior adjudication of insanity as defined in Ga. Code Ann. 102-103. Incidentally, it is clear that the release of the patient on July 29, 1964, with a diagnosis of "restored" did not work a determination of mental health by operation of law insofar as she was readmitted to the hospital on August 10, 1964, which is within the thirty day waiting period provided by this section. As to the effect of the patient's mental state upon his civil rights, Ga. Code Ann. 79-209 provides that persons non compos mentis (i.e., insane) "retain all the rights of citizens which they have the capacity to enjoy and which are compatible with their situation." Similarly, Ga. Code Ann. 88-516 provides that every person who has been determined mentally ill for purposes of admission to an institution "shall be entitled: . . . (3) to exercise all civil rights, . . . unless he has been determined by the court of ordinary . . . to be mentally ill to the extent that he is incapable of managing his estate" (i.e., to the extent that appointment of a guardian is necessary.) These sections, along with Ga. Code Ann. "49-604, make it clear that a determination of mental illness for purposes of admission to an institution is intended to have little or no effect upon the patient's civil rights. In particular, the patient is competent to own and manage property unless a guardian has been judicially appointed. On the other hand, the patient's civil rights are obviously abridged insofar as he is involuntarily incarcerated in a mental institution. Naturally, it is not feasible here to outline the legal situation of a patient with regard to every civil right which he might undertake to exercise. Hopefully the above statutes and the accompanying annotations will be of some guidance in particular situations. OPINION 67-263 (Unofficial) July 19, 1967 You wrote concerning the intangible tax imposed on long term notes secured by real estate. Ga. Code Ann., 92-164, provides that the tax shall be measured by the principal amount of the note, and in this respect 357 we agree with your contentions that the tax is not generally to be paid on the gross amount to be paid including prepaid interest. The Attorney General, in an unofficial opinion dated August 27, 1957, ruled that where the security instrument clearly indicates what portion of the face amount of the note is principal and what portion is interest, that the amount of the principal indebtedness determines the amount of the tax and the amount designated as interest does not figure in the computation of the tax. (Op. Att'y Gen. 1957, p. 300). Where the instrument does not disclose clearly the amount of the debt by virtue of a failure to separate the payments into principal and interest, the tax has been held to apply to the amount obtained by multiplying the stated payments by the number of monthly installments due. (Op. Att'y Gen. 1954-56, pp. 7, 8, 9). Ga. Code Ann. 92-164, provides that the Tax Commissioner is to determine the amount of the tax "from the face of the security instrument ... the principal amount thereof. ..." Generally the failure to pay the tax constitutes a bar to the collection of the indebtedness and the recording of such an untaxed instrument is not construed to be legal notice thereof. Georgia Code Annotated, Section 92-171; 51 Am. Jur., Taxation, Section 1258; 85 C. J. S., Taxation, Section 1082. The payment of an insufficient tax has been held to be constructive notice as to the prorata portion of the note upon which the tax has been paid. Houghton v. Smith, 242 N. W. 769; 258 Mich. 405. lt has also been held that even though an insufficient tax has been paid the record constitutes notice where the amount paid was the amount demanded by the tax official. Boydston v. Continental & Commercial T & S Bank, 298 F. 31 (1924). OPI:\IION 67-264 (Unofficial) July 20, 1967 You inquired about the 1966 Act of the General Assembly (Ga. Laws 1966, p. 566) relating to prima facie evidence based on the Federal wagering stamp. a From the new Ga. Code Ann. 26-6413, it appears that jury would be warranted in convicting on the basis of unrebutted evidence of possession of the Federal stamp or payment of the tax under 26 U .S.C.A. 4461. A case from Albany, Georgia, noted in 358 the Atlanta Journal, July 18, 1967, p. 2-A, Col. 1 [Evening Edition], reflects the practical problem of obtaining a jury verdict on this evidence alone. The probable legislative intent of this Act was that this presumption arose as to a particular defendant when a showing has been made of some violation of the Georgia gambling laws, i.e., that a crime had occurred. The guilt of a particular defendant and his involvement in the crime is presumed from the possession of the stamp. The scope of this presumption seems explicitly set out in Ga. Code Ann. 26-6413 to include any violation of the Georgia gambling and lottery laws and not to be restricted to coin-operated devices as set out in Ga. Code Ann. 26-6414. Due to the recent passage of this Act there have been no Georgia cases either construing the statute or dealing with its constitutionality. As to the search warrant, the general grounds are set out in Ga. Code Ann. 27-303. The wagering stamp would appear sufficient showing of probable cause that a crime is being committed. Ellenburg v. State, 113 Ga. App. 585 (1966), sets out the general right to search both home and office for implements of gambling. That information is required to be registered with the official in charge of the internal revenue district is provided by 26 U.S. C. A. 4412. Any information regarding the stamp could be obtained from that office. To obtain this information at the State level, address your request to the State Revenue Commissioner, Department of Revenue, State Office Building, Atlanta, Georgia 30334. OPINION 67-265 (Unofficial) July 24, 1967 You inquired about county residency requirements for eligibility to run for a county elective office. The question, as you posed it, was whether an individual who had previously established Miller County as his domicile, maintained an uninterrupted voting record there, continued to claim that County as "home", and has now returned, is eligible under Georgia law to hold county public office, notwithstanding the fact that he maintained his home (house) and 359 business outside the County during the last two years due to business exigencies. The legal prerequisites for holding county public office are outlined in Ga. Code Ann. 69-10 I (7): "No person shall be eligible to hold any county office in any county unless he shall have been a bona fide citizen of the county in which he shall be elected . . .at least two years prior to his election . . . , and is a qualified voter entitled to vote***" (Emphasis added.). Unlike the "residence" requirements for holding State or Federal office, it would seem from the above that county office requires only a two-year "citizenship." Precisely how this term should be construed is an open question, but it would seem to equate more with "domicile" than with "residence." Moreover, the Georgia cases are consistent in holding that the terms "domicile" and "residence" are not synonymous. 9 Ga. Digest, Domicile 2 ( 1965). Furthermore, "[a] person may be a qualified voter in one place and a bona fide resident for 'several years' in another place." A very v. Bower, 170 Ga. 202(1) ( 1929). It has consistently been held that the essential elements of domicile (or legal residence) are actual residence and the intention to remain permanently. Mayo v. Ivan Allen-Marshall Co., 51 Ga. App. 250 (1935). Also, the presumption of continuity of domicile exists except where an individual has left an address under circumstances suggesting the impossibility of return. G MAC v. Williams, 103 Ga. App. 109(3) (1961). The Georgia cases clearly indicate that an individual may have many residences, but only one domicile. Commercial Bank of Crawford v. Pharr, 75 Ga. App. 364 (1947). Moreover, residence amounts to no more than physical presence while domicile requires intent. Worsham v. Ligon, 144 Ga. 707 ( 1916 ). Hence, the intention to establish a "home" is controlling. Davis v. Holt, 105 Ga. App. 125 (1962). The issue of domicile, however, is qualified somewhat by the language of Ga. Code Ann. 79-40 I which states that an individual's domicile is "where the family of such person shall permanently reside, if in this State." Several cases construing this section appear in 9 Ga. Digest, Domicile 4(2) (1965). Nevertheless, it has generally been held that "loss of citizenship does not result from a change of residence not intended to be 360 permanent." Bush v. State, 10 Ga. App. 544, 546 (1911). The Supreme Court of Georgia, in Worsham v. Ligon, supra, illustrated this view, stating: "In order to change his domicile a person must actually remove to another place with a present intent of remaining there. .. or, having removed to a new place, avow his intention of remaining there as his place of domicile. (Emphasis added.). But that same Court added: " . . . [B]ut such avowal may be proved by express declaration or acts equivalent thereto." (Emphasis added.) Furthermore, a person may abandon his former domicile and adopt another, which will become his new domicile, notwithstanding his intention at some future date to return and reestablish residence and domicile. Cunningham v. Spurway, 50 Ga. App. 550(1) (1934). The crucial determination which must be made is whether or not an uninterrupted voting record and a continued claim of Miller County as "home" will offset any implied intent to change domicile which may have been evidenced by resignation as county commissioner and relocation of business situs and family residence. This is a question of fact and its determination ultimately may have to be made by a jury. Squire v. Vazquez, 52 Ga. App. 712 (1963); 9 Ga. Digest, Domicile ll ( 1965). OPINION 67-266 (Unofficial) July 25, 1967 You requested information concerning the payment of costs in Justice of the Peace Courts. In particular you posed the following questions: I. Who should pay costs for papers obtained by G. B. 1.? 2. Who should pay costs for papers obtained by State Revenue Dept. Alcohol Tax Unit. ... 3. Who should pay costs for papers obtained by County Law Officials'? 4. Who should pay costs of preliminary hearings for both County and State cases? 361 5. Who should be billed for the costs in any of the aforementioned where costs fall onto plaintiffs shoulders (that is, the law enforcement agency prosecuting, local or state)? In regard to the collection of costs in Justice of the Peace Courts, you realize that the facts of a particular case vary and thus possibly could affect the source from which the collection should be made. In answering the above five (5) questions posed by you, I am assuming that when you refer to "costs" that you have reference only to those fees which a Justice of the Peace is allowed to charge and collect according to Ga. Code Ann. 24-1601, as amended by the 1967 General Assembly. For your information and assistance, I am enclosing a copy of the new fee schedule which has been compiled in Ga. Laws 1967, pp. 469-471. Since all of your questions concern the payment of costs by governmental entities, I assume that you have reference only to costs in matters of a criminal nature. Initially, it was inferred that there could be no judgment for costs against the State. In Sigman v. Austin, 112 Ga. 570, 574 (1900) (dictum) it was stated that in regard to costs in the Supreme Court of Georgia that "of course, in case of reversal in a criminal case, there could be no judgment of costs against the State, either in this court or in the court below." In Yarborough v. The State, 31 Ga. App. 484 (2) (1923) the Sigman case was cited and the Court of Appeals stated that "There is no provision in law, in criminal cases, for the taxing of costs against the State ..., and, therefore, the contention of counsel for the plaintiff in error, that the costs incurred should be taxed against the State, is without merit." Thus, only by way of dictum is there any indication that the payment of costs in a trial or lower court cannot be taxed against the State. Additionally, by specific legislation, i.e., the Fine and Forfeiture Fund, Ga. Code Ann., Cbs. 27-28 and 27-29, the legislature has, in my opinion, made specific provision for payment of costs by certain governmental entities, i.e., counties, in specific instances. When discussing the matter of costs, the initial provisions to be considered are those found in Ga. Code Ann. 27-280 I wherein it is provided that upon conviction " . . . judgment may be entered up against him (a defendant) for all costs accruing in the committing on trial courts, and by any officer pending the prosecution. The judgment shall be a lien on all the property of the defendant from 362 the date of his arrest, and the clerk shall issue an execution on the judgment against said property." Thus, it is my opinion that you should look to the defendant for payment in any case wherein a conviction is had and a judgment for cost is entered. In cases wherein a conviction results but you are unable to collect the costs from the defendant your attention is called to Ga. Code Ann. 27-2928 thru 2932. In 27-2929 the following procedure for payment is provided: "Said officers above named [Justices of the Peace and Notaries Public who are ex-officio Justices of the Peace, and Constables of the State of Georgia] shall present their bill of costs to the clerk and judge of the superior court of their county at each term of said superior court, which bill shall be itemized, and with the affidavit of such officer who is seeking payment of his costs, that said itemized statement is correct and that none of said bill of costs has heretofore been paid by the county or the prosecutors or defendants or any other parties. It shall then be the duty of said clerk and judge of the superior court to examine said itemized statement, and certify as to whether they approve or disapprove such bill of costs, and if disapproved in part, that part which does not have the approval of both the judge and the clerk shall not be paid by the county, and if disapproved in whole, none of said bill shall be paid. However, if said bill is approved in part, the part approved by both the judge and the clerk, shall be paid, as heremafter provided." An exception to the applicability of this section is found in Ga. Code Ann. 27-2932 wherein it is stated that: "The provisions of this law [ 27-2928 to 27-2932] shall only apply to criminal cases, wherein, a warrant or warrants have been issued and have resulted in an accusation or an indictment and a conviction has been had on same." Therefore, in conclusion it is my unofficial opinion that you should first look to the payment of all costs by the defendants in cases wherein a conviction is had. If collection from the defendant proves unsuccessful then reliance upon Ga. Code Ann. 27-2929 for collection of said costs from the county would be appropriate. In other cases your attention is called to Ga. Code Ann. 272913 wherein it is provided that: 363 "Costs due justices of the peace and constables, in cases1. When parties have been acquitted; 2. When they are unable to pay costs; 3. In counties in which there are no county courts, when persons have been bound over by the justice, or have been committed to jail in default of bail and the grand jury makes a return of 'no bill;' or when, after an investigation, the party has been discharged by the justice; 4. In counties where there are county courts, in felony cases; and in misdemeanor cases in which an indictment has been demanded; Shall be paid out of fines and forfeitures upon the order of the judge of the superior court, and are of equal dignity with the accounts of the officers of the superior court, and entitled to participate pro rata upon a distribution of any funds arising from fines and forfeitures." Therefore, as to cases enumerated in the above quoted section, the payment of costs may be paid out of the Fine and Forfeiture Fund upon the order of the Judge of the Superior Court. OPINION 67-267 (Unofficial) July 26, 1967 This is in response to your inquiry about the effect of Berger v. New York, 35 U.S. L. W. 4649 (U.S. June 13, 1967) No. 617 on House Bill64 (Ga. Laws 1967, p. 844). There appears reasonable grounds for thinking that the Georgia statute can meet the standards laid down by the Berger case. The New York statute provided for issue of the warrant if there was reasonable grounds to believe that evidence of a crime might be obtained. The Court's criticism was that the New York statute failed to require description with particularity of the conversations sought and a belief that a particular crime had been or was being committed. House Bill 64, [Ga. Code Ann. 26-2005(c)], sets out probable cause as opposed to reasonable grounds. It also requires a higher degree of specificity as to the person or place involved, the crime committed, and the scope of use of the devices. Ga. Code Ann. 26-2005(c) also lists the crimes which may be the basis for the use of such devices. 364 The New York statute allowed a two month life to the warrant and a renewal on a showing that such renewal was in the public interest. The Court said the two months amounted to a general indiscriminate search and that the renewal was not based on present probable cause at the time of such renewal. Our Georgia statute provides that the warrant is good only for 10 days and renewal is only given on a showing of good cause at the time of the renewal. Ga. Code Ann. 26-2005(d). This would avoid the original showing of probable cause standing as a basis of the second I0 day period and require independent grounds at the time of the renewal. The New York statute also had no termination date on the warrant and did not provide for a return on the warrant. The Court was concerned with the wide discretion granted the officer and the general lack of adequate judicial supervision or protective procedures. Our Georgia statute requires certification that all evidence not related to the specific crime in the warrant has been destroyed. (Ga. Laws 1967, p. 849; House Bill 64, Ga. Code Ann. 26-2005(g) ). A return to the judge is required within 30 days from issue of the warrant. (Ibid.). The Georgia statute provides for less discretion on the part of the officer and more extensive judicial control. The Court's final criticism of the New York statute read as follows: "Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts." Berger, supra, at 4654. The opinion fails to define what are "special facts" or "exigent circumstance." The particularity required by the Georgia statute and the specific crimes named may amount to a showing of "special facts." This is the only questionable standard as applied to the Georgia statute. However, assuming the Court did wish to strike down the Georgia statute under the Berger decision, your analysis of Ga. Code Ann. 26-2005(A) relative to the remainder of Ga. Code Ann. 26-2005 seems accurate. The Court in Berger appears to be dealing with the use of electronic devices that affect a trespassory search. They cite Goldman v. U.S., 316 U.S. 129 (1942); On Lee 365 v. U. S., 343 U. S. 747 (1952); Lopez v. U. S., 373 U. S. 427 (1963); Osborn v. U.S., 385 U.S. 323 (1966) as qualifying under the Fourth Amendment on the grounds that they do not involve trespass. Ga. Code Ann. 26-2005(8) thru 26-2005(1) only involve devices qualifying under Ga. Code Ann. 26-2010 or those that involve a trespassory invasion of the right of privacy. The use of illuminating or magnifying devices would not have to meet the Berger standards and to this extent the exclusion of actions by officers under Ga. Code Ann. 26-2005(A) would not be effected by this decision. In light of the severability provision of the Georgia statute, it would seem the Court could strike Ga. Code Ann. 262005(8) thru 26-2005(1) without striking Ga. Code Ann. 262005(A). OPINION 67-268 (Unofficial) July 26, 1967 You state that your company is leasing motor vehicle equipment to a private carrier on a long-term lease basis, and that these motor vehicles are licensed in the State of Ohio. You ask information as to the various permits and taxes that must be paid to the State of Georgia to operate these motor vehicles in the State of Georgia. There is now in effect full reciprocity between the State of Ohio and the State of Georgia as to Motor Vehicle License fees. However, since the State of Ohio will not grant reciprocity on its mileage tax to Georgia vehicles, it will be necessary to pay a $10.00 registration fee on each vehicle and a $10.00 per trip fee into, through, or from the State of Georgia. Each vehicle operated in Georgia must also register with the Motor Fuel Tax Unit, Department of Revenue, 522 State Office Building, Atlanta, Georgia 30334, for payment of the motor fuel tax. The registration fee under the motor fuel tax law is $1.00. Reports of carriers are filed with the State Revenue Commissioner on the 20th day of April, July, October, and January of each year. These various registrations and reports must be made by the long-term lessee. Since the lessee of these motor vehicles is a private carrier, it will not be subject to the jurisdiction of the Georgia Public Service Commission. I am having the Motor Fuel Tax Unit, Department 366 of Revenue, forward to you a supply of registration and reporting forms which your lessee will need. 1 am also enclosing a copy of the law concerning the limitations as to size of vehicle and weight of load on vehicles operating in this State. OPI~ION 67-269 (Unofficial) July 26, 1967 You refer to Article XIIL Section I, Paragraph II of the Constitution of the State of Georgia of 1945 [Ga. Code Ann. 28102], which provides: "No Convention of the people shall be called by the General Assembly to revise, amend or change this Constitution, unless by the concurrence of two-thirds of all members of each house of the General Assembly. The representation in said Convention shall be based on population as near as practicable. This Constitution shall not be revised, amended, or changed by the Convention until the proposed revision, amendment, or change has been submitted and ratified by the people in the manner provided for submission and ratification of amendments proposed by the General Assembly." After noting that neither this nor any other provision of the existing Constitution provides for the method whereby constitutional conventions may be called, you ask for advice as to both this question and the question of which body (i.e. the General Assembly or the Executive Department) would appoint delegates to the convention. CONCLUSIONS While the diverse and contlictive opinions regarding the correct procedure to be followed in adopting a new state constitution by the "convention" method would seem, in the absence of any authoritative adjudication on the point by the Supreme Court of Georgia, to dictate that the safer course of action in this State would be to use the alternative "amendatory" procedure which was followed by the General Assembly respecting the 1945 Constitution and which received the imprimatur of the Court in Wheeler v. Board oj Trustees of Fargo Consolidated School District, 200 Ga. 323 ( 1946 ), it would be my opinion that in the event the constitutional convention method is utilized, the following procedure should be followed: 367 (I) The General Assembly should enact a convention act calling for the convening of a consitutional convention and setting forth the procedure whereby delegates to the convention shall be elected by the voters of Georgia. (2) The delegates to the convention should be elected by the people (not appointed by either the General Assembly or by the Executive Department) in accordance with the convention act and the mandate of the present (i.e. 1945) constitution that the representation be based on population as near as practicable. (3) The constitutional convention should convene at the time and place fixed in the convention act. (4) The new constitution drafted by the convention and proposed to the people of Georgia should be ratified by the people in the manner provided under the present constitution for ratification of amendments proposed by the General Assembly. In setting forth the foregoing as the procedure which "should" be followed if the constitutional convention method is utilized, I cannot emphasize too strongly that I use the word "should" in the sense of being the sajest legal procedure and the one to be adhered to if the constitutional convention is desired to be a legal or constitutional as opposed to an irregular, extra-legal or revolutionary convention. As will subsequently be pointed out, however, it does not necessarily follow that the product of an irregular, extra-legal or revolutionary convention cannot become a valid new constitution under any circumstance. DISCUSSION In Wheeler v. Board oj Trustees of Fargo Consolidated School District, 200 Ga. 323 ( 1946), the Supreme Court of Georgia held that the provision of the 1877 constitution which spoke of a convention of the people called by the General Assembly to revise, amend or change the constitution did not exclude alternative methods of adopting a new constitution. It upheld the Constitution of 1945 which had been proposed by the General Assembly in the form of an amendment to the 1877 constitution and was subsequently ratified by the people. In view of this clear judicial sanction of adopting a new constitution by initiative of the General Assembly plus subsequent ratification by the people it obviously follows, in the absence of any equivalent adjudication of the Court respecting proper procedure to be followed where the convention 368 method is utilized, that the safest procedure in adopting a new state constitution is not to proceed by a constitutional convention at all! As will shortly be seen, the practical wisdom of using legislative initiative rather than a constitutional convention (in Georgia) is reenforced by the existence of many unanswered questions regarding constitutional convention procedures, questions which are disputed by both those few judicial decisions in the field which have appeared in other jurisdictions and among the theorists on constitutional conventions and law. At the outset it might be observed that there does appear to be general agreement that a "constitutional convention" is an assembly of delegates or representatives selected by the people for the purpose of forming or revising a constitution. See e.g. 16 C.J.S. Constitutional Law I p. 22. The weight of authority is strongly inclined to the view that convention delegates must be chosen by the people and not by the legislature, governor or any other body. E.g. 16 C.J.S. Constitutional Law 8 p. 45; In Re Opinion to the Governor, 55 R. I. 56, 178 A. 433, 452 ( 1935); Opinion to the House of Representatives, 208 A.2d 116, 118 (1965). As stated in In Re Opinion to the Governor, supra, which appears to be far and away the most exhaustive decision reported on the adoption of new state constitutions by the convention method: "The delegates...must therefore come from the people who choose them for this high purpose and this purpose alone. They cannot be imposed upon the convention by any other authority. Neither the Legislature nor any other department of the government has the power to select delegates to such a convention. The delegates elected by and from the people, and only such delegates, may and of right have either a voice or vote therein." It is not overlooked that there is at least factual (albeit not legal) precedent contrary to this proposition in Georgia. While the delegates to most constitutional conventions of this State have indeed been selected by the people in accordance with the prevailing view (e.g. the constitutional conventions of 1833, 1839 and 1877), the delegates to the convention of 1788 were appointed by the legislature. See Jameson, Constitutional Conventions 260-266, pp. 258-268 (4th Ed. 1887) [Jameson described the 1788 convention as an "illegitimate" convention for this reason]. On the other hand such a practice, in addition to being contrary to prevailing view, 369 would also seem to be in direct conflict with the very first words of Article XI II, Section I, Paragraph II of the present (i.e. 1945) Constitution which speaks of a convention "of the people" to be called by the General Assembly. lfthe delegates were to be chosen by the Legislature or the Governor, it would seem to be conceptually impossible to refer to it as a convention "of the people." Consequently, it is my opinion that the election of delegates to a constitutional convention by the people rather than any other body is a prerequisite to a legal or constitutional as opposed to irregular, extra-legal or revolutionary convention. The question which follows, of course, is who, if the people must elect the delegates, places the overall convention process in motion. The answer is that even if the authority of the General Assembly of Georgia to call a convention of the people to revise or change the constitution were not so clearly set forth in Article XIII, Section I, Paragraph II of our present Constitution (Ga. Code Ann. 281 02), it would be a power which is inherently vested in the state legislature. See 16 C.J.S. Constitutional Law 8 p. 44; In Re Opinion to the Governor, 55 R. I. 56, 178 A. A33 (1935); Sturm, Methods of State Constitutional Reform, p. 85 (1954). Speaking of any possible question as to the power of the Governor in such matters, the Supreme Court of Rhode Island stated in In Re Opinion to the Governor, supra, at 178 A. 451: "To call for the convention is a function of the General Assembly and cannot be left to the discretion of the Governor." In view of the foregoing and similar authorities, it would seem to be fairly well settled that the legislature is the proper body to call a constitutional convention of the people and to prescribe the time and place it is to be held as well as the manner in which the delegates shall be elected by the people. See also Jameson, Constitutional Conventions 121, p. 109 (4th Ed. 1887). A question upon which the authorities are divided, however, is whether the legislature, in enacting a convention act, must also put to the people the question of whether or not to hold a constitutional convention (this question to be answered by the people at an election prior to the one at which they select delegates). Some authorities say that this issue too must be voted upon by the people, thus requiring three voter approvals in connection with the 370 adoption of a new constitution. See e.g. Hoar, Constitutional Conventions pp. 62-64 (1917). In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433,454 (1935), however, with one judge dissenting on the point, declined to follow an earlier ruling of the Supreme Court of Indiana to this effect and held instead that an election of the people as to whether or not to hold a constitutional convention is not an absolute necessity. It is my personal opinion that the reasoning of the majority of the Rhode Island Court that two elections are sufficient is sounder than the dissent or Indiana decision referred to therein, and I do not believe the Supreme Court of Georgia would hold that this third vote of the people is also necessary to have a legitimate and valid constitutional con.vention. Disagreement also exists as to whether any limitations or restrictions which the legislature inserts in the convention act are binding upon the delegates respecting the organization, conduct, procedure and matters to be considered at the convention. See 158 ALR 512, Power of state legislature to limit the powers of a state constitutional convention; In Re Opinion to the Governor, supra, at 178 A. 452, concluded that the legislature could not impose any limitations upon the deliberations of the convention where the convention was called by the legislature without voter approval, but could impose the same where inserted in a convention act calling for a decision by the people as to whether or not the convention should be held. The rationale is that in the latter situation such limitations are in actuality imposed by the people by their vote in favor of having such a "limited convention." Finally, with respect to ratification of the constitution proposed by the convention, suffice it to say that a vote of the people approving the revision is essential. Article XI II, Section I, Paragraph II of the Constitution of the State of Georgia of 1945 [Ga. Code Ann. 2-8102]; In Re Opinion to the Governor, 55 R.I. 56, 178 A. 433, 437, 453 (1935). All of the foregoing, of course, concerns the procedure which is to be followed where it is desired to minimize legal pitfalls and hold a constitutional convention which is legal or constitutional (i.e. in accordance with the provisions of the prior existing constitution) as opposed to an irregular, extra-legal or revolutionary convention. But notwithstanding that which has already been said regarding such conventions, it does not necessarily follow that any product of an illegal conception remains forever illegitimate. This would be as 371 erroneous a view respecting constitutional law as it is in the field of marital relations. The product of an illegally called or conducted convention may ultimately become valid as a fundamental law through adoption by the electoral body, according to forms of existing laws or even by acquiescence of the sovereign society. See Jameson, Constitutional Conventions 124 p. 172 (4th Ed. 1887). Thus where the Florida constitution of 1865 was drawn by a convention called (a) by the Governor rather than the legislature, and (b) in complete disregard of the requirement of the existing (1838) constitution that no convention of the people be called unless by concurrence of two-thirds of each House of the General Assembly (which is, of course, substantially the same as the 2/3 provision in Georgia's 1945 Constitution) the Supreme Court of Florida found no difficulty in upholding the new state constitution which was drafted by this irregular and illegitimate convention where it was subsequently ratified by the people. Bradford v. Shine, 13 Fla. 393,412-414 (1871). To hold otherwise would have been to place the stream (i.e. a constitution) higher than its source (i.e. the sovereign will of the people). As stated in Hoar, Constitutional Conventions p. 57 (1917): "We may conclude that although popular [i.e. 'irregular'] conventions are not constitutional, it does not necessarily follow that they are void. . . . They are really authorized by a power above the constitution, to wit, the sovereignty of the people, and hence are supraconstitutional and perfectly valid." Thus, while many practical obstacles exist where a constitution is drafted by an irregular, extra-legal or revolutionary convention (there would, for example, appear to be no way in which state or local officials could be lawfully compelled to place the constitution of such a body on the ballot for submission to the voters], it would be my opinion that in the event an irregularly drafted constitution did manage to see itself placed on the ballot and ratified by the people, it would be valid whether or not the procedures set forth in the prior constitution were followed. The ultimate test is whether the proposed constitution is approved by the people as sovereign. As stated by the highest court of Virginia in Kamper v. Hawkins, 3 Va. 20, 74 (1793): "The convention of Virginia had not the shadow of a legal or 372 constitutional form about it. It derived its existence and authority from a higher source; a power which can supersede all law and annul the constitution itself-namely the people in their sovereign, unlimited and unlimitable authority and capacity." OPINION 67-270 July 27, 1967 You requested an opinion concerning the admittance of a minister of the Jehovah's Witnesses to the Georgia State Prison for the purpose of conducting religious services. A state may enact legislation to regulate religious activities but it may not totally prohibit them. Cantwell v. Connecticut, 310 U.S. 296 (1940). The question of religious activities in penal institutions has not been considered, apparently, by the appellate courts of Georgia. There have been, however, a few cases in the federal courts touching upon this subject. It is to be noted at the outset that except in rare and extreme cases, courts will not interfere with the conduct of a prison, with the enforcement of prison rules and regulations, or with prison discipline~ Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963), cert. denied 376 U.S. 932, 84 S.Ct. 702, 11 L.2d 652 (1964). See in this same connection Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955). In a recent suit involving the New York State Prison System, the Circuit Court of Appeals for the Second Circuit held that: "The practice of any religion, however orthodox its beliefs and however accepted its practices, is subject to strict supervision and extensive limitations in a prison." Sostre v. McGinnis, 334 F.2d 906,908 (2d Cir. 1964). In further commenting about a prisoner's rights, the court noted that: "A prisoner has only such rights as can be exercised without impairing the requirements of prison discipline. 'Lawful incarceration brings about the necessary withdrawal of limitations of many privileges and rights, a restraint justified by the considerations underlying our penal system.' Price v. Johnston, 334 F.2d 266, 285, 68 S.Ct. 1049, 1060, 92 L. 1356 (1948)." Sostre v. McGinnis, supra at 908. 373 While the Sostre case makes it clear that religious activity in a state prison is subject to prison regulations, that case makes it equally clear that a prisoner should not be denied access to ministers of his faith, nor should he be prohibited from reasonably practicing his religion. In a case arising in the Atlanta Federal Penitentiary the Court of Appeals for the Fifth Circuit indicated that a prisoner may not be denied the reasonable practice of his religion. Walker. et a!. v. Blackwell, 360 F.2d 66 (1966). It is my opinion that the Department of Corrections should not deny permission to all Jehovah's Witnesses' ministers to visit the prisons or to conduct services therein. However, the denial of permission in individual instances, in the discretion of prison authorities, would appear to be completely lawful as a valid exercise of the State's power to regulate religious activities for the safety and welfare of its citizens. OPINION 67-271 July 27, 1967 You requested my official opinion as to whether a contract for the demolition of a building or buildings constitutes a public works contract within the contemplation of 1964 Ga. Laws, pp. 693, 696. It is my understanding that the State agency is to pay for such demolition. If my opinion to your first question is in the affirmative, you further wish to know whether or not the agencies exempt from the above law would be authorized to handle such demolition contracts rather than the office of the Supervisor of Purchases. 1964 Ga. Laws, pp. 693, 696, provides in pertinent part as follows: "Section l3A ....all construction or public works contracts, exceeding a total expenditure of $500, of any department, board, bureau, commission, office or agency of the State government, except as herein provided, shall be conducted and negotiated by the Supervisor of Purchases in accordance with the provisions of this Act. ... Nothing contained in this Section shall apply to nor affect the (here follows a list of agencies exempt from operation of this Act) .... " A determination of what are public works is often a question of 374 statutory construction and interpretation. In construing statutes providing for competitive bidding for public works contracts, courts have often been quite liberal in expanding the definition of public works to include buildings, structures and other works as by statute are authorized to be used for public purposes by the State or public agencies therein. See 43 Am. Jur., Public Works and Contracts,. 2. Other courts, in defining "public works contracts", have construed them to mean contracts akin to building or construction contracts as opposed to the operation of a city hospital (Carter v. The City and County of Denver, 114 Colo. 33, 160 P. 2d 991 (1945)), or a contract to delivery a map and plat book system (Employer's Casualty Co. v. Stewart Extract Co. (Texas Com. App.), 17 S.E. 2d 781 (1929) ). See also Clough v. The City of Colorado Springs, 70 Colo. 87, 197 P. 896 (1921). Both the Carter case and the Employer's Casualty Co. case held that when general words such as "public works" follow a particular enumeration, the general words are construed to mean things with the same general characteristics possessed by the particular ones. Therefore, the word "construction" appearing immediately before "public works" in the Georgia law would indicate that public works in this instance would only mean construction projects or projects akin to construction. Such a project, in my opinion, would be the demolition of an existing building, ,especially if the demolition is necessary to clear the land for the construction of a new building by the State of Georgia. It is therefore my opinion that the contracts for the demolition of a building would constitute a public works contract under 1964 Ga. Laws, p. 693. In reply to your further question as to whether or not the exempt agencies cited in the above law would be authorized to handle such demolition contracts, I would point out to you that the 1964 Act merely states that nothing contained in the Act shall apply to nor affect the exempt agencies. Therefore, these exempt agencies would continue to operate under the applicable law previous to the 1964 Act and if such previous law authorized these agencies to handle demolition contracts, then they may continue to do so. OPINION 67-272 375 July 28, 1967 You ask my opinion whether or not it would be proper for the Highway Department to submit a budget to the Budget Bureau for State funds up to $25,000.00 to be expended under a contract for construction of an airport without Federal participation, but with local participation of an equal amount prior to the official announcement of an approved program by the Federal Aeronautics Administration. Your question requires an examination of Section 47, paragraph (f) of the 1967 General Appropriations Act (Ga. Laws 1967, pp. 41, 77), and especially the interpretation of sub-paragraph (b) thereof. Since this question hinges entirely upon interpretation of the language of the statute, the pertinent sub-~ection is set out in full for reference: "(b) OTHER PROJECTS $100,000.00 "Provided that said $100,000.00 State appropriation may be expended only on non-carrier airports being built with the approval of the Federal Aeronautics Administration, with 50% Federal participation and 50% participation by the State and local funds, with the local funds being at least equal to State funds, and with State funds never exceeding $25,000.00 for any one airport. "Notwithstanding any other provision in this paragraph, the State funds allocated under this paragraph may be expended up to $25,000.00 for any one project when local funds are contributed in at least an equal amount for the purpose of building and completing any airport without any Federal participation, but shall not have precedence over any project approved by the Federal Aeronautics Administration." (Ga. Laws 1967, page 77). It is my understanding that your specific concern with regard to the above referenced section is whether or not it authorizes expenditure of State funds for building and completing an airport without Federal participation prior to the determination by the State of the amount of State funds which may be applied to projects approved by the "Federal Aeronautics Administration" (Federal Aviation Administration) pursuant to Federal aid legislation. 376 Ga. Code Ann. 102-102, provides, inter alia, "The following rules shall govern the construction of all statutory enactments: "1. The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter." With further regard to rules of construction the Supreme Court of Georgia said in Williams v. Bear's Den, Inc., 214 Ga. 240 (1958): "In the construction of a statute the legislative intent must be determined from a consideration of it as a whole. The construction of language and words used in one part of the statute must be in the light of the legislative intent as found in the statute as a whole. Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another. If they cannot be so reconciled the one which best conforms to the legislative intent must stand." With these rules of construction in mind, I have given careful consideration to the portion of the Appropriations Act under consideration which has been set out herein. It is my opinion that, although the first portion of subparagraph (b) provides that the appropriation in question may only be expended on airports built with the approval of the "Federal Aeronautics Administration", the latter portion of this subparagraph clearly expresses the intention of the legislature that under certain circumstances funds may be expended for projects without Federal participation. The more difficult question which is next reached is when may such local projects receive funds? Upon close analysis of the paragraph in question it is my opinion that the determination of this question depends upon the definitive sense ascribed to the word "precedence". Webster's Third New International Dictionary, 1961, sets out two senses of "precedence" which are relevant to the problem at 377 hand. They are: (1) the fact of preceding in time-the earlier place or occurrence-antecedence; (2) consideration before otherspriority of importance-preference. If the first sense, as shown above, is applicable, no non- Federal supported project could be considered until all projects intended to receive Federal support had either been allocated funds or disapproved by the FAA, and the remaining unexpended appropriation could then be directed toward non-Federal local projects. I do not believe such an interpretation can be supported by a fair reading of the language of the statute. It is my opinion that the second sense of "precedence", as set out above, is the proper one in this case, and that the word must be taken to refer to "preference", or "priority of importance". Defined thusly the paragraph means that, should claims by both a Federal supported and non-Federal supported project be made upon the same unexpended fund, the Federal supported project would have preference. This is in accordance with the clear meaning of the phrase contained in the sub-paragraph, "any project approved by the Federal Aeronautics Administration", which contemplates a conflict between a local project and a presently existing project approved by the FAA. In the absence of a presently existing, approved, Federal supported project no question of preference or priority of importance would be presented. It is therefore my opinion that the Act does not preclude expenditure of funds on non- Federal supported projects prior to a complete determination of the amounts which may be furnished by Federal authorities on FAA approved projects, when no present conflict exists. It should be noted that the reference in the Appropriations Act to the "Federal Aeronautics Administration" apparently refers to the Federal Aviation Administration, recently formed under the new Department of Transportation. OPINION 67-273 July 28, 1967 You asked three questions regarding Title XIX of the Social Security Act, indicating that the Department of Family and Children Services was anxious for as immediate an answer as possible. Your questions were: 378 l. Under Title XIX of the Social Security Act, the Governor has the authority to designate the "Single State Agency" to administer the program. The Governor has designated the State Department of Family and Children Services as the single state agency. Does he have the authority to rescind this designation and redesignate the State Department of Public Health as the single state agency to administer the program? 2. Can the Medical Care Program authorized under Title XIX and House Bill 594 (Copy attached. I cannot find this in Acts of 1966.) be transferred to State Health Department (See 99-124)? 3. Can the funds appropriated to this Department to implement this program be transferred to the Health Department? (See 40-421 ). As you are already aware, the Office of the Attorney General is authorized by law to render legal assistance only to the Governor and heads of State Departments and for this reason my reply to your questions must be regarded as unofficial and solely an expression of my personal views on the matter. Subject to this understanding, my reply to your questions is as follows. l. Public Law 89-97, in subchapter XIX thereof [42 USCA 1396-1396d] established a new program of federal grants to states for medical assistance programs. Under the Act, the State plan for medical assistance must either provide for the establishment or designation ofa single State agency to administer the plan, or provide for the establishment or designation of a single State agency to supervise local administration of the plan. See 42 USCA 1396a(a) (6). Accordingly, Governor Maddox on June 7, 1967, designated the State Department of Family and Children Services as the single state agency to administer the new program. You now desire to know whether the Governor has the authority to rescind this designation and redesignate the State Department of Public Health as the single state agency to administer the program. From a view point of federal law, of course, the ultimate answer to this question is one which directs itself to appropriate authorities of the U.S. Department of Health, Education and Welfare, which administers the program on the federal level. I might observe, however, that inasmuch as there is nothing in the federal act that I am aware of which would even suggest that such designation of the 379 state agency can not be so changed by the governor, I would be most surprised if the redesignation were to be found objectionable on the federal level. Respecting State law the only question that I am aware of would be whether the state agency sought to be redesignated to administer the plan in Georgia is possessed with sufficient legal authority to administer the same. In view of its broad powers to safeguard and promote the health of the people of this State and employ all legal means appropriate to this end, Ga. Code Ann. 88-108 and to act as the agency of this State in receiving and administering grants and donations for health services from the Federal Government, Ga. Code Ann. 88-111, it would seem to me to be beyond question that the State Department of Public Health is vested with ample legal authority to administer Title XIX of the Social Security Act in Georgia. 2. As indicated above, the State Department of Public Health is vested with ample legal authority to administer the plan under the Ga. Code Ann. 88-108 and 88-111. In addition, the State Department of Family and Children Services, under Ga. Code Ann. 99-124 is expressly empowered with authority to delegate any activity of said Department of any other appropriate department or agency of the State. 3. Funds appropriated to the State Department of Family and Children Services for Title XI X purposes could validly be transferred to the State Department of Public Health under Ga. Code Ann. 40-421. OPINION 67-274 July 31, 1967 You inquired concerning the extent of a county's right to condemn property for construction of a public fishing lake. Ga. Code Ann. 36-1401 provides that counties may condemn property "to enable the county to institute and to accomplish the completion of small watershed projects and for works of improvement for watersheds and for watershed protection and flood control and flood prevention. . . ." Further, Ga. Code Ann. 36-1402 provides that counties may condemn property "for 380 certain public parks, playgrounds, recreational centers or other recreational facilities, to be developed in connection with the development or construction of any such small watershed project. ..." The exact meaning of the above quoted words, "in connection with," is not clear. However, I believe that the intendment of these words is that a proposed facility, which may be used for recreational purposes, must also have substantial, tangible watershed or flood control benefits. Although the above statutes were enacted in 1964, I believe that the authority therein delegated to the counties is in no respect curtailed by the State Properties Acquisition Law of 1965. I am of the opinion that a county is not to be classified as a "department and agency of the State" as used in that statute. Therefore, it is my official opinion that a county may condemn property upon which to construct a public fishing lake if the lake is "in connection with" the development or construction of a watershed project. OPINION 67-275 July 31, 1967 You requested my official opinion concerning whether or not the Bureau of Safety Responsibility can accept a policy of insurance in lieu of Form SR-21 where the insurance company has since the date of an accident gone into the hands of receivership and is unable to file a certificate of insurance coverage, Form SR-21. Ga. Code Ann. 92A-605, subsection A, provides: "No less than 30 days after receipt by him of the report or notice of an accident which has resulted in bodily injury or death, or in damage to the property of any one person to the extent of $100 or more, the Director shall suspend the license and all registration certificates and all registration plates of the operator and owner of any motor vehicle in any manner involved in the accident unless or until the operator or owner has previously furnished or immediately furnishes security, sufficient in the judgment of the Director to satisfy any judgments for damages or injuries resulting from the accident as may be recovered against the operator or owner or by or on 381 behalf of any person aggrieved or his legal representative, but in no event in any amount less than the combined amount of the damage or damages for both personal and property injury, sworn to in the report or notice of the accident from the aggrieved party, and unless such operator or owner or both shall give and maintain proof of financial responsibility. . . " However, Ga. Code Ann. 98A-605, subsection C provides: "This section shall not apply under the conditions stated in 92A-606 nor: (1) To such operator or owner if such owner had in effect at the time of such accident an automobile liability policy with respect to the motor vehicle involved in such accident: . . . ." In reading these two above quoted code sections in conjunction with each other, it is seen that Ga. Code Ann. 92A-605, subsection C(l) provides an exception to the requirements of Ga. Code Ann. 92A-605, subsection A and eliminates the necessity of complying with the provisions of Ga. Code Ann. 92A-605, subsection A. An analysis of this exception will result in an answer to the above question. Under the provisions of this exception in order for an operator or owner of a vehicle involved in an accident to be exonerated from the requirements of Ga. Code Ann. 92A605, subsection A, he must have an automobile liability policy in effect at the time of said accident. Therefore, if the insurance company should go into the hands of a receiver, this subsequent change in circumstances would be immaterial as to the automobile owner's responsibility in regard to the provisions of Ga. Code Ann. 92A-605, subsection A. The rules of the Department of Public Safety, Chapter 570-6.23, Rule 9 provides: "Form SR-21 Notice of Liability Insurance. This is an insurance carriers' form and should be filed when involved in an accident if there was liability insurance in effect on the date of the accident. Ga. Code Ann. 92A-605." (Emphasis added.) It is to be noted that the wording of this Rule is merely permissive and is not mandatory. Hence the permissiveness of the wording of this Rule indicates that Form SR-21 may be dispensed with and other proof of the existence of liability insurance may be 382 submitted. Also in correlation with the provisions of Ga. Code Ann. 92A-605, subsection C(1) the wording of Chapter 570-6-.23, Rule 9, mdicates that in order for an insured operator to be exempt from the provisions of Ga. Code Ann. 92A-605, subsection A, it is only necessary that there be liability insurance in effect at the date ofthe accident. In relation to your subsidiary question as to whether under the Motor Vehicle Safety Act of Georgia, Ga. Code Ann. 92A-605, paragraph A and paragraph C, would the policy be sufficient to verify coverage due to the cancellation clauses contained in the individual company policies, this question can be answered on general principles of insurance law. Once an accident has occurred the third party has a claim against the insured motorist who is covered by a liability insurance policy. Therefore, any notice of cancellation by the insurance company or any change in the financial position of the insurance company, such as entering into receivership, would have no effect on this third party's claim against the insured and the insurance company. Furthermore, cancellation of an insurance policy must be made pursuant to the provisions of Ga. Code Ann. 56-2430. The provisions of this code section require written notice of cancellation with an expressed provision that at least five days must elapse after notice before the policy can be canceled. Therefore, if the liability policy was in effect at the time of the accident, the third party's claim would not be effected by a subsequent attempted cancellation. Finally, in the event that an insurance company refuses to file Form SR-21 pursuant to Rule 9 of Chapter 570-6-.23 on the basis that subsequent to the accident the insurance company has been placed in receivership, then the liability insurance policy itself would be the best evidence of the existence of coverage. In order to circumvent the possibility of the operator or owner holding a policy which has lapsed due to nonpayment of the premiums, it will necessitate the promulgation of a rule by the Department of Public Safety requiring the filing of an affidavit by the insured operator or owner that this policy was in effect on the date of the accident. It is to be understood that the prt:sentment of a liability insurance policy and an accompanying affidavit by the insured would not supersede the requisites of Rule 9 which requires the filing of Form SR-21. But this would be used as an alternative method in lieu of Form SR-21 when the insurance carrier refused to file this form. 383 Furthermore, due to the fact that Ga. Code Ann. 92A-605, subsection C makes no provision as to the method of proof of the existence of a liability insurance policy on the date of the accident and since Rule 9 of Chapter 570-6-.23 which requires Form SR-21 as proof of insurance is an administrative rule of the Department of Public Safety which may be overruled or supplemented, then it would be within the discretion of your department to enact and promulgate a rule to alleviate this situation. Therefore, it is my official opinion that the Bureau of Safety Responsibility can accept a policy of insurance in lieu ofForm SR21 in cases where the insurance company has, subsequent to the date of the accident, gone into the hands of a receiver and refuses or is unable to file a certificate of insurance coverage. However, this policy must be accompanied by an affidavit to the effect that the liability insurance policy was in effect on the date of the accident. The filing of ari insurance policy and an accompanying affidavit would be accomplished through authorization by the Department of Public Safety in the promulgation of administrative rules to this effect. Thus, in regard to your second subsidiary question concerning whether, if the insurance companies cannot verify the liability insurance coverage with the Department of Public Safety, should the operators and owners of vehicles involved in accidents be required to post security with your department, it is my opinion that from the above interpretation that security would be unnecessary. Since another method of proof is available to show that a liability insurance policy was in existence at the date of the accident and by filing this form the operator would come under the exception and exoneration provisions of Ga. Code Ann. 92A-605, subsection C(l) then there would be no necessity for such security. OPINION 67-276 July 31, 1967 You request my opinion on two questions concerning the 1964 Health Code (Ga. Laws 1964, p. 499), to wit: "(1) What is the authority of local boards of health to collect fees or make charges other than those specified in the Public Health Code, and "(2) What differences of authority, if any, exist between 384 those boards of health established by constitutional amendment or special acts of the Legislature and those established under the mechanisms of the general law?" The reply to your first question, which seems to presuppose that the boards referred to derive their authority from the 1964 Health Code, will be predicated on that assumption. The new "Health Code" contains no specific grant of power to fix and collect fees other than those therein specified, e.g., a fee imposed for copies of and searches made for vital records (Ga. Code Ann. 88-1725). The following provision of Ga. Code Ann. 88-214, warrants the inference that no such authority is to be implied: " . . . . The expenditures anticipated . . . shall be certified by the county board of health, with a copy of the budget, to the taxing authority of the county, which may fix and levy a tax rate sufficient to raise said amount at the same time and in the same manner prescribed for levying taxes for other county purposes ...;" Although this new section is not as clear on the point of the sources for local funds as was former Ga. Code Ann. 88-206 under the "Ellis Health Law," the changes seem to have been made for the purpose of altering or clarifying the procedure to be utilized in the preparation of the budget and the levying of a tax sufficient to raise said amount, and not for the purpose of changing the sources of local funds which were clearly limited by former Ga. Code Ann. 88-206 to specified sources rather than fees. Additionally, Ga. Code Ann. 88-217 provides as follows: "The rules and regulations of county boards of health in force immediately prior to the enactment of this Title shall remain in effect until amended, revised, or repealed." Thus it is clear to see from the above quoted code sections that those county boards which had regulations requiring fees for certain services as of March 18, 1964, said date being the effective date of the Health Code, have authority to collect such fees under the new act. Conversely, those local boards which did not have such authority on March 18, 1964, do not by the enactment of the 1964 Health Code acquire such rights. In response to your second question, I call your attention to the fact that unlike the boards dealt with in question one above, each of 385 the boards established by special act or constitutional amendment derives its authority solely by virtue of its own creating act or constitutional amendment. Ga. Code Ann. 88-219 provides as follows: ''Nothing in this Chapter shall be construed as altering the organization or abridging the powers of boards of health now existing under and by virtue of any amendments to the Constitution of this State or by any special law thereunder enacted by the General Assembly. However, it is the intent of this Title to provide as fully as practicable, on an equally effective basis, programs, facilities, and services adequate for promoting the health of the citizens of this State." In reviewing the Georgia laws applicable to this above code section, I am able to find only four exceptions to the general provisions of the Health Code, and since such acts are not uniform, reference must be made to each individually in answering your question. (a) Macon-Bibb County Board of Health. The constitutional amendment creating this board was proposed by Georgia Laws 1953, page 56, and ratified by the voters of this State on November 2, 1954. This amendment, at pages 260-261, contains a specific grant of authority to fix and collect fees for certain purposes, i.e., for inspection services provided after adoption of reasonable health, sanitation, plumbing, and garbage collection and disposal regulations. Under general rules or' statutory construction, this specific grant indicates an intent that no other grant of the MaconBibb County Board of Health can fix and collect fees for the purposes hereinbefore enumerated. (b) Richmond County Department ofHealth. The text of the constitutional amendment creating this board is found in Georgia Laws 1952, page 71. One of the main purposes of this amendment was to confirm Georgia Laws 1931, page 660. A careful study of these latter laws indicates that no additional sources of local funds were intended. It is provided in Georgia Laws 1931, page 666, that " . . . the expenditures of the Department of Health shall not exceed the amount appropriated by the City Council of Augusta and the Richmond County Board of Commissioners of Roads and 386 Revenues, for the purpose of carrying out the provisions of this Act . . . ." At page 667, it is further provided that " . . . . The budget . . . shall be divided between the City of Augusta and Richmond County ...." The intent thus indicated is that the funds for the operation of the health program in Richmond County are to come out of general sources of revenue and not from fees for services. (c) Muscogee County Board of Health. The text of the constitutional amendment creating this board is found in Georgia Laws 1947, page 1780. This amendment confirmed Georgia Laws 1941, page 937. At page 945 of this latter act, the following language indicates that local funds are to come out of general revenue: "... The City of Columbus shall appropriate and pay into a fund designated as the health fund a lump sum equal to one half of said budget, and Muscogee County shall likewise appropriate and pay into said fund a sum equal to one half of said budget; . . . .'' The intent thus indicates that funds for the operation of the Muscogee County Board of Health are to come from general revenue sources rather than from fees. (d) Fulton County Board of Health. This board was established by a special act of the General Assembly and is found in Georgia Laws 1951, page 555. The act provides for the creation of, the membership in, the duties, powers and jurisdiction of the board, and provides for the fiscal support of such board by the fixing of an annual budget. At page 559 of said act the following language is found, negating any authority to use as a source of local funds anything other than general' tax money: "Section 16. In all such counties, all costs and expenses . . . shall be paid out of the county treasury, and from funds of the Georgia Department of Public Health which may be appropriated by the General Assembly of Georgia, or allotted by the Federal Government or other agencies as grants-inaid." Consequently, neither the boards established by the Georgia Health Code nor those established by special act or constitutional 387 amendment have authority to fix and collect fees other than those specifically enumerated in their establishing legislation or constitutional amendments. OPINION 67-277 (Unofficial) July 31, 1967 You inquired about the County Commissioner's power to license the sale of beer. The issuing of a beer license in any county is discretionary with the County Commissioners. "Under the Malt Beverage Act the county commissioners of any county in this State have a right to pass a resolution authorizing the sale of malt beverages in the county, and to fix an annual license fee therefor." Op. Att'y Gen. 1958-59, p.205. There is no provision requiring or providing for a referendum on this question. "The board of county commissioners have the right to exercise their discretion in this matter. The only recourse to prevent the sale would be the election of county commissioners who were opposed to the legalized sale of malt beverages in your county." Ibid. Not only is the referendum not required but expenditures for such are not authorized. As Houston County v. Kersh and Wayne, 82 Ga. 252, at 255, points out: "Authority for paying out the public money should be found in some law. One claiming to draw money out of the treasury of the county or the State should be able to point to a law that clearly authorizes the expenditure." OPINION 67-278 August 1, 1967 You request my official opinion as to the validity of that portion of the Mixed Drink Act, Ga. Code Ann. 58-1083 (Ga. Laws 1965, p. 771 ), which provides that cities and counties covered by the Act shall have 388 " . . the power and authority to promulgate reasonable rules and regulations governing the conduct of any licensee provided for in this Section, including but not being limited to the regulation of hours of business, . . . .'' I understand your inquiry to be whether those rules and ordinances adopted by cities which allow the sale of mixed drinks on Sunday are therefore duly authorized. Georgia law provides specifically that the sale of liquor on Sundays shall be a misdemeanor. Ga. Code Ann. 58-1060 (Ga. Laws 1937-38, Extra. Sess., pp. 103, 118); Ga. Code Ann. 266105 (Ga. Laws 1865-6, p. 233). It is also stated that this prohibition shall begin at 12:00 midnight Saturday night. See Ga. Code Ann. 58-1079 (Ga. Laws 1937-38, Extra. Sess., pp. 103, 123). Although the 1964 Mixed Drink Act makes no reference to the prohibition of liquor sales on Sunday, neither does it indicate legislative intent to repeal those laws. At the present time, therefore, Ga. Code Ann. 58-1060, 58-1079, and 26-6105 have continued validity. It would appear that insofar as the Mixed Drink Act purports to empower cities and counties to promulgate rules which though regulatory in form, are legislative in fact, the Act is to that extent an unlawful delegation of legislative authority. The law recognizes an inherent difference in delegation of power to pass a law and power to adopt rules and regulations to carry into effect a law already passed. Southern Railway Co. v. Melton, 133 Ga. 277 (1909); Georgia Railway v. Smith, 70 Ga. 694 (1883). The former power is non-delegable, since the legislative power is vested solely in the General Assembly. Georgia Constitution, Article I II, Section I, Paragraph I. (Ga. Code Ann., Section 2-130 1). The latter power may be lawfully delegated, but only if the legislative enactment pursuant to which the power is given ''has plainly set forth the purpose of the legislation and marked its limits" (Emphasis supplied). Phillips v. City of Atlanta, 210 Ga. 72, 74 (1953). Insofar as the rule-making power contains discretion to act in the legislative sphere, it clearly contravenes the Georgia Constitution. See Richterv. Chatham County, 146 Ga. 218 (1916). A power to make regulations in conflict with laws prohibiting Sunday liquor sales would appear to involve such law-making authority. It has been recognized that legislation to which a referendum is 389 attached is not per se an unlawful delegation of legislative power. See Phillips v. City ofAtlanta, 210 Ga. 72,74 (1953). But the power to regulate incident to an enactment which has become law by referendum must be contained within the scope of the legislation. For examples of valid application of this principle, see Thomas v. Ragsdale, 188 Ga. 238 (1939); Plaza Liquor Stores, Inc. v. City of Atlanta, 220 Ga. 615 (1965); for an example of invalid application, see Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 ( 1964). My conclusion is that any city or county rules or ordinances which attempt to authorize the sale of mixed drinks after 12:00 on Saturday night are invalid, and that said sales are unlawful. OPINION 67-279 (Unofficial) August I, 1967 You requested my comments as to whether or not your dog repellent product, "Scoot," had been properly classified by the Commissioner of1Agriculture as an economic poison under the Georgia Economic Poisons Act. After researching the question thoroughly, I can only conclude that the Commissioner's actions were lawful and proper. An economic poison is defined as "any substance or mixture of substances intended for . . . , repelling, . . . animal life . . . which the Commissioner shall declare to be a pest." Ga. Code Ann. 5-1502. The Commissioner is authorized to establish rules and regulations for the administration of the Economic Poison Act. Ga. Code Ann. 5-1505. Under this authority the Commissioner has declared that dogs are to be classified as pests "when it [dogs] exists under circumstances that make it injurious to plants, man, domestic animals, other useful vertebrates, useful invertebrates, or other articles or substances." I Rules & Regulations of the State of Georgia 40-11-6-.02( I). Thus the criterion for classification of a substance as an economic poison is the purpose for which the substance is used and not its toxic or deleterious effects upon plant or animal life. In this respect the widely employed term "economic poison" is perhaps an unhappy choice of words. Nevertheless, I am informed by the Department of Agriculture that the labeling and branding 390 requirements of the Georgia Act are substantially the same as those established by the Federal Insecticide, Fungicide and Rodenticide Act which applies to all economic poisons shipped in interstate commerce . . Since the Commissioner of Agriculture is vested with exclusive jurisdictiop over the control and regulation of economic poisons in Georgia, Ga. Code Ann. 5-1513, the only solution which I can suggest for your problem is to petition the Commissioner under the Georgia Administrative Procedure Act, Ga. Code Ann. 3A-112, for a specific declaratory determination of whether the product "Scoot" falls within the meaning of the Georgia Economic Poisons Act and the rules and regulations of the Commissioner established thereunder. OPINION 67-280 (Unofficial) August 1, 1967 You requested my opmwn as to the tax consequences of a proposed lease agreement between the Firestone Tire and Rubber Company and the Albany-Dougherty Payroll Development Authority. The proposed agreement would provide for the Authority to lease to the Company certain land, land improvements, buildings, machinery and equipment necessary for a complete tire manufacturing plant to be located in Dougherty County, Georgia. The lease agreement is to provide for the title to remain at all times in the Authority with the lessee directly responsible for the payment of maintenance charges, insurance premiums, and governmental charges during the entire term of the lease agreement. The primary term of the lease would be 25 years with renewal and purchase options available at a nominal consideration. The lease agreement will provide that the relationship of landlord and tenant is to be created and that no estate shall pass out of the Authority and that the lessee shall have only a usufruct. The lessee will have no right to assign or sublet and lessee's rights shall not be subject to levy and sale. Generally, a long-term lease creates an estate for years which under Georgia law is subject to ad valorem taxation. Delta Air Lines, Inc. v. Coleman, 219 Ga. 12; 131 S.E.2d 768 (1963). Where 391 an owner of real estate grants to another simply the right to possess and enjoy the use of property for a fixed time which he can not convey except with the landlord's consent, then the relationship of landlord and tenant is created and the tenant acquires only a usufruct which is not subject to ad valorem taxation. Henson v. Airways Service, Inc., 220 Ga. 44; 136 S.E.2d 747 (1964). The proposed lease agreement would in my opinion create the relationship of landlord and tenant, would not convey an estate for years, and would not be subject to ad valorem taxation in Georgia. OPINION 67-281 (Unofficial) August 3, 1967 You requested my opmwn with regard to four problems encountered by you in the 1964 Mental Health Act. Rather than restate the questions, I am enclosing a copy of the same and shall discuss the problems generally. 1. First, it should be pointed out that the present trend of the law is away from a strict sane-insane approach to the problem of mental condition. The 1964 Act makes separate provisions for determination of mental capacity for purposes of appointment of a guardian, Ga. Code Ann. 49-106, 49-604, and for purposes of admission to mental institutions, Ga. Code Ann. 88-501, et seq. One who has been determined to be mentally ill for purposes of admission to a mental institution retains the capacity "to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, enter contractual relationships, and vote, unless he has been determined . . . to be mentally ill to the extent that he is incapable of managing his estate." Ga. Code Ann. 88-516. Upon the recommendation of the superintendent of a psychiatric hospital, an "improved" patient may be released from the hospital on convalescent status, which status "shall include provisions for continuing responsibility to and by the hospital, including a plan of treatments on an out-patient status." Ga. Code Ann. 88-512. In view of this continuing relationship between the patient and the hospital, I conclude that a person who has been determined mentally ill to the extent he requires hospitalization retains all the civil rights provided in Ga. Code Ann. 88-516, whether he is on convalescent status or confined to the hospital premises. 392 The inability of such a convalescent patient to find employment or to enter into business transactions is not the product of any legal incapacity on his part. Such obstacles are attributable, I believe, to the layman's aversion to dealing with persons of questionable mental state. In this connection, it should also be noted that Ga. Code Ann. 88-522(c), which relates to the restoration of a patient on convalescent status, provides only for a determination that the patient is no longer mentally ill to the extent he requires hospitalization. The hypothetical patient has never been adjudicated mentally ill to the extent he is incapable of managing his estate, and therefore he has, at all times, been competent to exercise the civil rights provided in Ga. Code Ann. 88-516. 2. You inquired whether the attached "Physician's Certificate" is legally sufficient to authorize temporary detention under Ga. Code Ann. 88-506(c). I am of the opinion that the certificate, on its face, is not sufficient. The statute requires the ,affidavit of a physician that the patient "is violent or for other reasons is liable to do physical harm to himself or others." I note that the attached certificate makes no provision for attestation by a notary public or other officer competent to administer oath. Also, the certificate neither expressly states that the patient is violent nor requires that the physician give the "other reasons" why the patient is likely to do physical harm to himself or others. In most cases, these statutory allegations would likely appear in the space provided for the physician's diagnosis. However, if such allegations did not appear, I would have serious doubts of the sufficiency of the affidavit to sustain a temporary detention. Of course, the physician's Certificate Form, M H l.2, could be employed, if the above deficiencies were remedied. 3. I am of the opinion that a court or ordinary may not lawfully predicate the appointment of a guardian, under Ga. Code Ann. 49-604, upon a superior court's sustaining of a criminal defendant's plea or defense of insanity. The criterion for appointment of a guardian, provided in Ga. Code Ann. 49-604, is whether or not the patient is capable of managing his estate. The criterion for determining the defense of insanity at the time of commission of an act is "whether the accused had 'reason sufficient to distinguish between right and 393 wrong in relation' to the particular offense committed." Ross v. State, 217 Ga. 569, 124 S. E.2d 280 (1962). The criterion for determining the validity of a special plea of insanity at the time of trial is: " . . . whether the defendant is mentally competent at the time of the trial of understanding the nature and object of the proceedings going on against him, and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands." Brown v. State, 215 Ga. 784, 113 S. E. 2d 618 (1960). See Ga. Code Ann. 27-1502. While one might ordinarily suspect that a person whose mental state warrants the sustaining of a plea or defense of insanity is likewise incapable of managing his estate, such is not necessarily true. The three above stated criteria are qualitatively different. I am of the opinion that the present state of the sciences dealing with human behavior does not warrant the treatment of the above three criteria as points of degree along a continuum of human behavior. Of course, an ordinary could appoint a guardian for one who has been hospitalized upon a plea or defense of insanity, provided the procedures outlined in Ga. Code Ann. 49-604 are followed. But I am of the opinion that appointment of a guardian would not be warranted solely because of the sustaining of such plea or defense. 4. In proceedings for the appointment of a guardian for a minor under the age of fourteen, Ga. Code Ann. 49-112 provides that the application shall be served "upon the three next adult relatives residing in Georgia." Since persons adjudicated mentally ill to the extent they require hospitalization retain the civil rights provided in Ga. Code Ann. 88-516, I am of the opinion that such persons are entitled to notice of the proceedings as provided by Ga. Code Ann. 49-112, provided such person is a "next adult relative" and a resident of the state, and regardless of whether such person is on convalescent status or is a resident patient of the hospital. If the adult relative has been adjudicated mentally ill to the extent he is incapable of managing his estate, then notice of the proceedings should be served upon the adult relative's guardian. For whatever value it may be, I am enclosing a copy of an 394 informal opinion rendered to Honorable John L. Hutson, Clerk, Court of Ordinary, Cobb County, concerning some analogous problems raised by him in connection with the 1964 Mental Health Act. OPINION 67-282 (Unofficial) August 3, 1961 You request information concerning escheat of proceeds represented by uncashed negotiable instruments under Georgia law. It would appear that at the present time Georgia's position with regard to the escheat of proceeds of intangibles, such as uncashed negotiable instruments, is relatively uncertain. The basic escheat laws are found in Ga. Code Ann. Ch. 85-11, a copy of which is attached. This chapter is part of the real property subtitle; however, a case decision apparently has construed the similarly worded predecessor of part of Ga. Code Ann. Ch. 85-11 to apply to personal property as well. See Duggan v. Lamar, 110 Ga. 470 (1900). Thus, although there has been no Georgia decision involving escheat of unclaimed intangibles, it would seem at least arguable that an item such as you mention could be subject to escheat. However, you will notice that the Georgia escheat statutes are fairly narrow procedurally. There is an excellent booklet published by the Institute of Law and Government at the University of Georgia Law School, entitled "A Study of Escheat and Unclaimed Property Statutes" which may be of interest to you. The author is R. Perry Sentell, Jr. It does not contain a specific treatment of intangibles, but the discussion of escheat in Georgia is fairly comprehensive and may offer some perspective to help you with your problem . . OPINION 67-283 (Unofficial) August 3, 1967 This is in reply to your letter concerning the agreement executed by George C. O'Berry and Kathrine E. O'Berry in Accident Case No. M-36,705. Your question was whether or not this agreement would satisfy the provisions of the Motor Vehicle Responsibility 395 Act in relation to the return of security that has been filed pursuant to the provisions of this act. It is our understanding from the information that we have received from you that there is presently on file with the Director of the Department of Public Safety a cashier's check for the amount of $4,092.95 which has been deposited on behalf of Emily D. and Donald D. McCoy by Mrs. Christine B. Doughman. This deposit was security to claims filed by Emmett Pearl Carraher alleging property damage to the amount of $299.90 and claims of George E. O'Berry and Kathrine E. O'Berry alleging damages to the total amount of$3,792.85. From the copies of the judgments which we received from your office, it is our understanding that Mr. George O'Berry recovered an amount of $4,138.85 and Mrs. Elizabeth 0 1Berry recovered an amount of $3,361.15 in an action for damages tried before a jury in Fulton County Superior Court, June 17, 1964. Also these enclosed judgments disclosed that Mr. Emmett P. Carraher recovered a judgment on February 21, 1964, against Donald D. McCoy in the amount of$17,995.00 Subsequent to their judgment against Donald D. McCoy, the 0' Berrys entered into an agreement with Mr. McCoy dated December 24, 1964. The pertinent provisions of this agreement that are now in question are set forth as follows: "In consideration of the payment of $3,792.85 to George C. O'Berry and Kathrine E. O'Berry in hand paid by Helen R. Bloodworth for and on behalf of Donald D. McCoy, hereinafter called payer, we do hereby forfeit and release any further claim we might have in and to that certain bond executed by Donald D.McCoy as principal and Mrs. Christine B. Doughman, as surety, made the the Department of Public Safety of the State of Georgia, pursuant to law, in the amount of$3,792.85. "This agreement shall not be construed as being in full satisfaction of verdict and judgments rendered in favor of the undersigned in cases numbered A-98033 and A-92179 in the Superior Court of Fulton County, Georgia." Thus your question is whether or not this agreement satisfies the requisites of Chapter 92A-6, Motor Vehicle Safety Responsibility Act, in regard to the reduction and return of the security on deposit. 396 In other words, the surety on the bond, Mrs. Doughman, desires to reduce the amount of the bond by $3,792.85 leaving a balance of $299.90 as security on the claim of Emmett Pearl Carraher. The provisions for the custody, disposition and return of security filed pursuant to the provisions of the Motor Vehicle Safety Responsibility Act are set forth in Ga. Code Ann. 92A-611. These provisions as set forth: "Security deposited in compliance with the requirements of this Chapter shall be placed by the Director in the custody of the State Treasurer and shall be applicable only to the payment of the judgment or judgments rendered against the person or persons on whose behalf the deposit was made, for damages arising out of the accident in question in an action at law, begun not later than two years after the date of such accident, or within two years after the date of deposit of any security under subdivision (3) of 92A-607, and such deposit or any balance thereof shall be returned to the depositor or his personal representative when evidence satisfactory to the Director has been filed with him that there has been a release from liability, or the final adjudication of nonliability, of a duly acknowledged agreement, in accordance with subdivision (4) of 92A-606, or whenever, after the expiration of two years from the date of the accident, or within two years from the date of deposit of any security under subdivision (3) of 92A-607, the director shall be given reasonable evidence that there is no such action pending and no judgment rendered in such action left unpaid." In construing the above-quoted agreement in conjunction with the provisions in 92A-611, it is my unofficial opinion that the above agreement does not meet any of the specifications as set out by 92A-611 and, therefore, this bond cannot be reduced in the desired amount. Although the above-quoted agreement is entitled "Agreement" the parties to this agreement George 0' Berry and Kathrine O'Berry do not make a full settlement of their claim dgainst Donald D. McCoy by the execution of said agreement. Although the parties George 0' Berry and Kathrine 0' Berry do agree to forfeit and release any further claim that they might have in and to the bond in question executed by Donald D. McCoy as principal and Mrs. Christine B. Doughman as surety in consideration for the payment of $3,792.85, yet in the same 397 agreement it is stated that these claimants, George O'Berry and Kathrine O;Berry, refused to accept this as full' satisfaction of the verdict and judgments as rendered against Donald D. MCoy by the Superior Court of Fulton County in the amount of $4,138.85 for Mr. George C. O'Berry and $3,361.15 for Mrs. Elizabeth O'Berry. Therefore, pursuant to this construction and comparing the wording of this agreement to the requisites of Ga. Code Ann. 92A-6ll such an agreement cannot be designated as (I) a release from liability or (2) the final adjudication of nonliability, of a duly acknowledged agreement pursuant to the provisions in Ga. Code Ann. 92A-606, subsection (4) which provides that a duly acknowledged agreement must include provisions for "the payment of an agreed amount in installments, with respect to all claims for injuries or damages resulting from the accident." Nor can this agreement be considered as reasonable evidence that there is no acting pending and no judgment rendered in such action left unpaid. Therefore, until either of these prerequisites of 92A-6ll are met, this security can neither be reduced nor returned by your Department. OPINION 67-284 August 4, 1967 You wrote concerning the regulations of fortified wine. The Revenue Tax Act to legalize and control alcoholic beverages and liquors provides in Ga. Code Ann. 58-10 II: "Definitions. - (a) The words 'spirituous liquors' or 'distilled spirits' mean any alcoholic beverage containing alcohol obtained by distillation, mixed with water or other substance in solution, and includes brandy, rum, whiskey, gin cordials, or other spirituous liquors by whatever name called, to include fortified wines as defined by Federal Alcohol Administration, but nothing in this Chapter shall prohibit the sale of wines from natural fermentation of fruits, berries, and other products." (Emphasis added.) Your regulations define distilled spirits to include any product containing alcohol obtained by distillation or more than 21% by volume, "including fortified wines." Reg. 560-2-.06. 398 The Supreme Court of Georgia in the case of Gay et a/. v. Clements, 214 Ga. 136 (1958), stated: "While fortified wines are defined by the laws of Georgia as an alcoholic beverage under the control of the Alcohol Beverage and Liquors Control Act, all other wines come under the control of the Wine Acts of this State." In my opinion, unless the regulation specifically excludes fortified wines, they would be covered by the regulations pursuant to the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors." OPINION 67-285 August 4, 1967 You inquire as follows: "Please advise if in your opinion the State Funds provided for airport development in the General Appropriations Act No. 47 (H.B. No. 45) for the fiscal year 1967-68, Section 47, Subsection F, Sub-paragraph (a) may be expended without local participation and without Federal participation, and if not, what percentage of the total cost of the airport development should be borne by the Federal government, the State and Local government." The General Appropriations Act for 1967-68, Ga. Laws 1967, page 77, sub-section 47 (f), sub-paragraph (a), appropriated from $100,000.00 to $150,000.00 for named airport projects. Sub-section 47 (f) (b), concerning appropriations of $100,000.00 to "other projects" provides that: "State appropriations may be expended only . . . . with 50% Federal participation and participation by the State and local funds, with the local funds being at least equal to State funds " At first observation, the limiting language in subsection 47 (f) (b) seems to apply only to the $100,000.00 appropriated to "other projects." However, subsection 47 (f) (c) provides: "If any of the projects listed in subparagraph (a) herein [including all airport projects] are not carried out because of non-participation by local or Federal government, the State 399 funds for such project shall be transferred to the appropriation made in subparagraph (b) hereof [other purposes]." (Emphasis ours) The apparent inconsistency between Section 47 (f) (a) and Section 47 (f) (c) requires resort to statutory construction. In Williams v. Bear's Den, Inc., 214 Ga. 240 (1952), the Georgia Supreme Court said: "In the construction of a statute the legislative intent must be determined from a consideration of it as a whole . . . . Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another." Unless the whole of Section 47 is construed as requiring that the appropriations in subsection (a) conform to the matching requirements of subsection (b), the transfer provision of subsection (c) is rendered largely meaningless. I conclude, therefore, that the State appropriations from $25,000.00 to $150,000.00 for various airport projects is contingent upon an equal amount of local funds plus fifty per cent Federal participation exclusively to each airport project. OPINION 67-286 (Unofficial) August 4, 1967 You requested my opinion as to whether a mobile check cashing service would be permitted under our State law and whether such an operation would come under the jurisdiction of the State Banking Department or the Georgia Industrial Loan Act. The Georgia Banking law defines "bank" as follows: " ... Any moneyed corporation authorized by law to receive deposits of money and commercial paper, to make loans, to discount bills, notes and other commercial paper, to buy and sell bills of exchange, and to issue bills, notes, acceptances or other evidences of debt . . . ." Ga. Code Ann. 13-20 I. Although I am not advised of the exact details of how the checking cashing service would operate, it might very well be the 400 type of operation which would come under the definition of a bank and thus be subject to the State Banking Department. OPINION 67-287 (Unofficial) August 8, 1967 You made inquiry as to whether or not twenty-nine (29) slot machines seized in a raid on several of the Decatur County private clubs and which are now held by the officials of Decatur County can be condemned and sold and the proceeds of such sale to be returned to Decatur County. The provisions of Ga. Code Ann. 26-6502 prohibits the carrying on of a lottery. These provisions as set forth state: "Any person who, by himself or another, shall keep, maintain, employ, or carry on any lottery or other scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor." The mere keeping of a device for the hazarding of money, such as a slot machine, designed to pay off on certain combinations upon receipt of hazarded coin, constitutes a violation of the above-quoted Code Section. Miller v. State, 94 Ga. App. 259, 94 S.E.2d 120 (1956). Since the keeping of a slot machine is declared unlawful by 266502, then such an apparatus is thereby considered as contraband. Elder v. Camp, 193 Ga. 320, 321(2), 18 S.E.2d 622 (1942). The provisions of Ga. Code Ann. 26-6507 declares as contraband any vehicles and conveyances used for transportation of lottery and gambling devices. The subsequent section of Ga. Code Ann. 26-6508 sets forth provisions for seizure, condemnation, sale, and application of proceeds of such vehicles and conveyances. These provisions as set forth are: "All vehicles and conveyances of every kind used in transporting or conveying in any manner any lottery ticket, lottery book, lottery ribbon or any article or thing used to assist or in connection with keeping, maintaining, or carrying on any lottery scheme or device for hazarding money or valuable things shall be seized by any sheriff or any other arresting officer, who shall report the same, within ten (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 ten (10) days after the time 401 he received said notice to institute condemnation proceedings in said court by petition, a copy of which shall be served upon the owner, lessee, or lien holder of such vehicle or conveyance, if known, and if the owner, lessee or lien holder is unknown, notice of such proceedings shall be published once a week for two (2) weeks in the newspaper in which the sheriff's advertisements are published. If no defense shall be filed within thirty (30) days from the filing of petition, judgment by default shall be entered by the court at chambers, otherwise the case shall proceed as other civil cases in said court. Should it appear upon the trial of the case that the owner, lessee or lien holder of such vehicle or conveyance knew, or by the exercise of ordinary care, should have known that the same was so used in violation of this law [ 26-6507, 26-6508], the same shall be sold by order of the court after such advertisement as the court may direct. The proceeds arising from the sale shall be applied as follows: (a) To the payment of the expenses in said case, including the expense incurred in the seizure and the cost of court in said proceedings; (b) One-third (l/3) of the remainder to the officer making the seizure of such vehicle or conveyances in furnishing the proof. Where such officers are paid a salary, the fiscal authority of the county or municipality paying such salary may require the officer m~king such seizure to remit the sum to the Treasury of such county or municipality; (c) The remainder, if any, shall be paid into the county Treasury as county funds." From the above-quoted Code Section the legislative intent is unclear as to the disposition of seized lottery devices and the application of the proceeds. However, in the case of AAA Amusements, Inc. v. State of Georgia, 106 Ga. App. 663, 127 S.E.2d 919 (1962), the Georgia Court of Appeals held that a pinball machine, which had been used in a lottery operation, was subject to condemnation under this Code Section. Therefore, since slot machines are treated and are considered in the same category with pinball machines then the logic in the opinion of AAA Amusements, Inc. v. State of Georgia, supra, would be applicable in this situation, also. 402 Therefore, it is my unofficial opinion that these lottery devices could be sold, however, this sale must be made pursuant to and in line with the provisions of Ga. Code Ann. 26-6508. Furthermore, it is to be noted that 15 U.S.C.A. 1172 makes it unlawful to knowingly transport any gambling device to any place in a state, District of Columbia, or a possession of the United States from any place outside of such state, the District of Columbia or possession. However, this provision is inapplicable to transportation of the gambling device to a state which is exempt from the provisions of 1172, or to a state in which gambling establishments and betting are legal. Also, 15 U.S.C.A. 1173(a) (2), makes it unlawful for any person to engage in the business of selling or making available of others any gambling device if in such business he sells, ships or delivers any such device knowing that it will be introduced into interstate or foreign commerce, unless such person has registered with the Attorney General pursuant to the provisions of 15 U.S.C.A. 1173(a) (4). Finally, due to the fact that gambling devices are contraband, then a sale could not be consummated in Georgia to a private individual, since no property interest could pass in Georgia. Upon the surrendering of possession to a private individual by the State, the gambling devices would once again be subject to seizure and the purchaser would be subject to criminal prosecution. Therefore, any sale of such gambling devices must be consummated within the state to which the gambling devices were to be shipped and that state must be one in which gambling devices are legal under the applicable state laws. OPINION 67-288 (Unofficial) August 8, 1967 In your letter you asked the following questions: (a) How is the office of State Highway Director filled-appointment by Governor, election? (b) What kind of organizational relationship exists between the Governor and the Director? 403 (c) What are the specific powers and responsibilities of the Director and where did these powers and responsibilities previously reside? In response to your questions, I will direct your attention to the State Highway Board Reorganization Act, Ga. Laws 1963, p. 1, et. seq.; Ga. Code Ann. 95-1603. Section (g) of said Act states that: "Beginning in 1967 and in subsequent years, said Director shall be elected by a majority vote of the members of the Board present and voting, and shall serve for a term of four years and until his successor is elected by the Board and qualified; said Director shall be subject to removal by the Board for just cause, after reasonable notice, copy of charges, hearing and opportunity for presentation of evidence." In answer to your second question, the office of Director of the State Highway Department is completely separated from the office of Governor of Georgia. The Director is to be elected by the State Highway Board and is to be removed by the same Board. According to Section (g) of the aforementioned Act, the first Director was appointed by the Governor of Georgia, but as stated above, beginning in 1967 and in subsequent years, the Director shall be elected by the State Highway Board. In answer to your third question, Section (e) of said Act provides in part as follows: "There is hereby created the office of Director of the State Highway Department, 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." These powers and responsibilities previously resided in a threemember State Highway Board. See Ga. Laws 1950, pp. 62, 63; 1951, pp. 31, 33; 1958, pp. 624, 625. OPINION 67-289 August 9, 1967 You requested my opinion regarding the validity of a certain group life insurance beneficiary designation. 404 The factual background pertaining to this matter, as contained in the file for the insured individual, is as follows: (a) On July 1, 1964, the insured, Mr. Lovett M. Broome, a retired employee of the State Highway Department, designated his wife, Mrs. Pearl Broome, as his primary group life insurance beneficiary and Mary Louise Lumpkin, his stepdaughter, as his contingent beneficiary. (b) On July 25, 1964, Mr. Broome executed a new designation form naming Dora Mae V. King, a step-daughter, as his primary beneficiary and his wife, Mrs. Pearl Broome, as the contingent beneficiary. (c) Under date of November 10, 1966, a third designation form was purportedly executed by Mr. Broome which named Mrs. Annie A. Davis, a friend, as primary beneficiary and Mr. NoelL. Davis, her husband, as contingent beneficiary. (d) Mr. Broome died on May 25, 1967, without making further changes in the beneficiary designation. Investigation by the Georgia Bureau of Investigation subsequent to Mr. Broome's death revealed that his purported signature on the beneficiary change set out in paragraph (c), above, was in fact signed by the named beneficiary, Mrs. Davis, who states that the act was done at the request and direction of the insured, and that four members of her family witnessed the transaction. The investigative report furnished by the G.B.I. with regard to the insured's relation with his family and with the Davis family supports Mrs. Davis' contention that it was the insured's desire that she be named as beneficiary. All of the beneficiary designation forms referred to above reserved the right of the insured to change the beneficiary. lt is my opinion that the form designating Mrs. Davis as beneficiary is not invalidated merely because the insured did not physically sign his name to it, if the party who actually signed for him did so in his presence and with his consent. The general rule, as stated in Neal v. Harber, 35 Ga. App. 628 (1926), is that, "Where a person's name is signed for him, at his direction and in his presence, by another, the signature beco'mes his own." Although the file contains some contradictory evidence as to whether Mr. Broome was able to write or sign his name, there is no legal requirement that a person be unable to write in order to sign by an amanuensis. 405 There is, of course, the further question of proof of the actual nature of the transaction. However, all the evidence in the file is consistent with the statement of Mrs. Davis and there is no evidence to the contrary. It is my opinion that the witnesses named by Mrs. Davis should be requested to furnish sworn affidavits as to the nature of the transaction, and thaf if said affidavits support the contention that the insured directed the execution of his signature on the designation form, while of sound mind, that payment upon the policy should be made to Mrs. Annie A. Davis as named primary beneficiary. OPINION 67-290 (Unofficial) August 9, 1967 You inquired about the liability of landowners to trespassers, licensees, and invitees. The landowner owes no affirmative duty to the trespasser to anticipate his presence or to keep the premises to any given standard. Butler v. Brogdon, 110 Ga. App. 352 (la, b), 138 S.E.2d 604 (1964). A negative duty exists on the owner not to prepare pitfalls or mantraps for the trespasser nor otherwise to injure him wilfully or wantonly. Id. 352 (lc). Ga. Code Ann. 105-402 defines licensee and states that the owner's liability is limited to wilful or wanton injury. Under this statutory definition, the hunter having a free permit is a licensee. An affirmative duty is imposed upon the landowner with regard to invitees in Ga. Code Ann. 105-401: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." The court in Anderson v. Cooper; Scarboro Enterprises, Inc. v. Cooper, 214 Ga. 164, 104 S.E.2d 90 (1958), interprets Ga. Code Ann. 105-401 and 105-402 and concludes that the status of invitee involves some benefit to the owner or some mutual interest. In the case of the paying hunter the owner obviously receives a benefit and impliedly, if not expressly, invites the hunter's entry upon his land. 406 OPINION 67-291 August 10, 1967 You requested my official opinion regarding the jurisdiction of the Georgia Public Service Commission. A 1967 amendment to Qa. Code Ann. 93-307 provides that the Commission "shall have the power .and authority to proscribe rules and regulations for the safe installation and operations of all natural gas transmission and distribution facilities within this State." You have asked whether such amendment vests jurisdiction in the Commission over the safe operation of natural gas transmission and distribution facilities which are owned and operated by and within any county or municipality of this State. In the case of Georgia Public Service Commission v. City of Albany, 180 Ga. 355, 364 (1935), The Georgia Supreme Court held that Ga. Code Ann. 93-307, as it then existed, did not give the Commission jurisdiction or supervision over gas plants which are owned by municipalities in this State. The Court reasoned that "general words of a statute will not include the government or affect its rights, unless that construction be clear and indisputable upon the text of the act . . . . The same rule applies to . . . counties . . . and municipalities." ld. p. 363. Accordingly, I believe that because municipal corporations are not mentioned in the 1967 amendment to Ga. Code Ann. 93-307 or elsewhere in such Code Section, under the principles announced in the Albany case, supra, the Commission has no jurisdiction over natural gas facilities owned and operated by and within a county or municipality of this State. OPINION 67-292 August 14, 1967 You ask whether the State Board of Education may legally establish a quorum for the transaction of business which is less than a majority of its membership. My reply is in the negative for the following reasons. While it is true that Ga. Code Ann. Ch. 32-4, in dealing with the State Board of Education, its make up, powers, and meetings does not contain any provision similar to the requirement of Ga. Code Ann. 32907 that for county school boards "[a] majority of the board shall 407 constitute a quorum for the transaction of business," it is my opinion that the same rule holds for the State Board of Education. It is the rule generally that under common law and in the absence of any statutory modification thereof, authority vested in a board or commission for public purposes may be executed by a majority of the total membership provided that all had notice and opportunity to act. See, e.g. 2 Am. Jur. 2d Administrative Law 196; 67 C.J.S. Officers 109. Moreover, it would appear that this general rule has been expressly incorporated into the annotated code of this State by Ga. Code Ann. 102-102(5) which says: "A joint authority given to any number of persons or officers, may be executed by a majority of them, unless it is otherwise declared.'' It follows, of course, that any action taken at a meeting at which less than a majority of the board's membership is present would be a nullity. OPINION 67-293 (Unofficial) August 14, 1967 You requested an opinion on the following question: How much power, if any, does the Governor relinquish when he leaves the State for any period of time during his term of office? The Constitution of Georgia provides in Art. V, Sec. I, Par. VII (Ga. Code Ann. 2-3007) in part as follows: "In case of the death, resignation or disability of the Governor, the Lieutenant Governor shall exercise the executive power and receive the compensation of the Governor until the next general election for members of the General Assembly." Death, resignation or disability are the only contingencies specified by the Constitution for devolution of the powers of the Office of Governor on the Lieutenant Governor. Since disability implies inability to perform because of physical or mental impairment, it is my opinion that the Governor's absence from the State does not constitute a "disability." 408 OPINION 67-294 (Unofficial) August 16, 1967 You ask whether Ga. Code Ann. 58-609, which prohibits the giving or furnishing of alcoholic beverages within two miles of any election precinct on an election day, has been repealed by implication by that provision of the recent Election Code which prohibits the sale of such beverages on election day without reference to the geographical area affected by the prohibition(Ga. Code Ann. 34-1937). Your letter reflects the opinion, apparently based upon an assumption that the newer statute applies to a geographical area comprising the entire county, that such repeal by implication has taken place and that any election covered by the Georgia Election Code, even a special justice of the peace election confined to a single militia district,now prohibits the election day sale of alcoholic beverages anywhere in the county instead of merely within two miles of the affected voting district or districts. OPINION In my opinion the enactment of Ga. Code Ann. 34-1937 as a part of the recent 1964 "Georgia Election Code" has not effected a repeal of Ga. Code Ann. 58-609 by implication. I find no irreconcilable conflict between the two provisions and to the contrary consider them to be statutes in pari materia which are to be harmonized and construed together. So construed the geographical restrictions of the older statute appear to me to be equally applicable to Ga. Code Ann. 34-1937. DISCUSSION Ga. Code Ann. 58-609, which in its present form has been a part of the laws of Georgia for over eighty years, provides: "Any person who shall give or furnish spirituous, intoxicating, or malt liquors to any person, in any quantity, within two miles of any election precinct, on days of election, either State, county, municipal, or primary elections, shall be guilty of a misdemeanor. ..." (Emphasis added). Some forty years later similar prohibitions against the sale of spirituous liquors on election day were included in the 1937 "Revenue Tax Act to Legalize and Control Alcoholic Beverages" (Ga. Laws 1937-38, Extra. Sess., pp. 303 et seq.). Unlike the earlier statute, however, these newer prohibitions (Ga. Code Ann. 409 58-1060 and 58-1079) failed to specify any precise geographicallimits respecting the prohibition.1 The recent "Georgia Election Code" (i.e. Ga. Laws 1964, Extra. Sess., p. 26 et seq.) again sets forth a provision prohibiting the sale of alcoholic beverages on election day. This provision, to wit: Ga. Code Ann. 34-1937, is the subject matter of your inquiry. It states: "Any person who shall sell or buy or offer for sale any alcoholic beverages on primary or election days shall be guilty of a misdemeanor." As in the case of Ga. Code Ann. 58-1060 and 58-1079 this newest statute once again fails to show the geographical area of its applicability. Standing alone it would seem to me that it could just as well, if not better, be argued that the affected area under these three "silent" statutes is only the election district or districts involved in the particular election, as it could be argued that the ban is county-wide in all situations, including those where the election itself is confined to a single election district (e.g. a special justice of the peace election). Standing alone it could also be argued that as criminal statutes said provisions are unconstitutionally vague and ambiguous because of their failure to specify any geographical limitations. Fortunately, however, these provisions do not stand alone. The Court of Appeals has already held in Kaminsky v. The State, 76 Ga. App. 505 (1948), that 58-609 is not in irreconcilable conflict with 58-1060 and 58-1079 and hence was not repealed by implication upon passage of the same. As I see it the same reasoning applies to the question of an implied repeal of 56-609 by Ga. Code Ann. 34-1937. As pointed out in Kaminsky, the repeal of a statute by implication is not favored and will be allowed only where there is a clear conflict between the two which cannot be reconciled. Where is the conflict here? As has already been pointed out, Ga. Code Ann. 34-1937, like 581060 and 58-1079, wholly fails to specify the geographic area to which it is to be applied on an election day. It seems to me that this failure negates any contention of a conflict between these provisions and the earlier 58-609 on the point of the territorial applicability I. Ga. Code Ann. 58-1079 does broadly state that it applies to those counties in which the sale of liquor has been authorized by the 1937 Act but this sheds no light on the question in point. 410 of the election day prohibition of liquor sales. Quite to the contrary the General Assembly of Georgia, in enacting new legislation, is presumed to be aware of the existing statutes on the subject matter. Thus it is a basic rule of statutory construction that all statutes relating to the same subject matter (commonly referred to as statutes in pari materia) are construed together and harmonized wherever possible. See Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731-32 (1948); Byington v. The State, 106 Ga. App.247, 250 (1962). Consequently it is my opinion that the geographical areas to which Ga. Code Ann. 34-1937 (and also Ga. Code Ann. 58-1060 and 58-1079) applies is identical to that set forth in Ga. Code Ann. 58-609, which is: ''within two miles of any election precinct.' "2 In closing I might further point out that the construction which I have herein adopted is consistent with Art. II, Sec. V, Par. I of the State Constitution (Ga. Code Ann. 2-1101) which provides that the General Assembly "shall by law forbid the sale of intoxicating drinks in this State or any political subdivision thereof on all days for the holding of any election in the area in which such election is held and prescribe punishment for any violation of the same." (Emphasis added). While I recognize that this constitutional provision is not selfexecuting and that the General Assembly could if it so desired (and in fact to some extent did by virtue of the two mile clause of Ga. Code Ann. 58-609) go beyond the constitutional requirement of prohibiting the sale of alcoholic beverages in only those areas (i.e. election districts) where the election is held, such constitutional reference to a less than county wide area would, under the circumstances, also be of considerable significance in interpreting the intendment of the General Assembly in the matter in the various statutes considered herein. 2. The term "election precinct" as employed in the prior election laws of this State has been superseded by the term "election district" in the 1964 Election Code but the difference is one of terminology only. See Ga. Code Ann. 34-70 l. OPINION 67-295 (Unofficial) 411 August 16, 1967 In your request you indicate that it is your intention to utilize business license legislation to control "clip joints" in your county. By an amendment to the Georgia Constitution (Art. XV, Sec. 2) a certain degree of home rule was given to the counties of Georgia. In subparagraph l(a) of this amendment provision is made as follows: The governing authority of each county shall have the legislative power to adopt clearly reasonable ordinances, resolutions or regulations relating to its property, affairs and local government for which no provision has been made by general law and which is not inconsistent with this Constitution, or any local law applicable thereto. Additionally, subparagraph l(c) provides that: The power granted to counties in subparagraphs (a) and (b) above shall not be construed to extend to any . . . matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law, or the subject oflocal acts . . . . It is my unofficial opinion that by general law the General Assembly has preempted the field of county business licenses so that the counties may not provide for the issuance of such licenses under the home rule amendment. In Ga. Code Ann. Ch. 92-39 and 23-27 provision is made for the licensing of businesses by counties and such are provisions of general law within the meaning of the home rule amendment. In addition, Ga. Code Ann. 58-1083 provides for a referendum procedure to give to counties having a population of 40,000 or more the authority to license the sale of alcoholic beverages by the drink. By these general laws the legislature has preempted the field of county licensing. Furthermore, subparagraph (3) of 3 of the home rule amendment provides that the legislative power granted by the amendment does not extend to "action defining any criminal offense or providing for criminal punishment." Thus, the amendment itself prohibits the passing of an ordinance which provides criminal punishment for operating a business without a license. With no authority to enforce any ordinances enacted with criminal sanctions, your county could not effectively enforce the regulations of business establishments which you desire to control. 412 By Ga. Canst., Art. VII, Sec. IV, Par. I, Subpar. 19, authority is granted to the General Assembly to authorize the counties to assess and collect license fees from persons carrying on businesses outside of the corporate limits of municipalities. However, to my knowledge there have been no statutes enacted implementing this constitutional authority. Your difficulties in this matter are appreciated and I can understand your desire to take the necessary steps to eliminate such places of business. This may well be the subject for the attention of the General Assembly and you may wish to discuss this matter further with your County Attorney, as well as with your Senator or Representative. OPINION 67-296 (Unofficial) August 16, 1967 You requested an opinion on whether that portion of Ga. Code Ann. 86-1106 providing for the exemption of militiamen from jury duty is repealed by Ga. Code Ann. 59-112, as amended by Ga. Laws 1967, p. 725. It is my unofficial opinion that Ga. Code Ann. 86-1106 is in conflict with Ga. Code Ann. 59-112, as amended, and is therefore repealed. The general rule of statutory construction is that a statute will be held to have repealed a prior statute where the oldest statute is clearly inconsistent with and contrary to the most recently enacted law, or when the newest expression of the legislature appears to cover the entire subject matter and give expression to the whole law on the subject matter. Nash v. National Preferred Life Insurance Co., 222 Ga. 14 (1966). The 1967 Act which amended Ga. Code Ann. 59-112 does cover the entire subject matter of jury exemptions and expresses the entire legislative intention on the subject. Additionally, your attention is called to the repealer clause of the amendment ( 3, Ga. Laws 1967, p. 725, 727) which provides that "all laws and parts of laws in conflict with this Act are hereby repealed." The Act amending 59-112 not only provides for certain enumerated exemptions, but also further provides, as found in I(b) of Ga. Laws 1967, p. 725, 726, a discretion in the granting of exemptions as follows: 413 Any other persons summoned to jury duty may -be excused therefrom by the Judge of the court to whi'ch he has been summoned upon a showing that he will be engaged during the term of his required service in work necessary to the public health, safety or good order, or that she is a housewife with children 14 years of age or younger. (Emphasis added.) Thus, in view of the foregoing discussion it is my opinion that Ga. Code Ann. 86-1106 is repealed insofar as it purports to grant specific exemptions from jury duty to members of the organized militia. OPINION 67-297 (Unofficial) August 16, 1967 You ask for any citation or information we might have on the question of whether a mayor and councilmen may be elected by a mere "plurality" of those electors of a municipality who vote in a particular election as opposed to a "majority" of those casting ballots. Unfortunately I find that I am unable to give you any significant assistance in the matter. While the Georgia Election Code requires a majority vote respecting those elections which are covered by its provisions (Ga. Code Ann. 34-1514), it expressly excludes the nomination or election of candidates in municipal primaries or elections from its purview. Ga. Code Ann. 34-102. I am unaware of any other statute of general application which might control and it consequently appears to me that the matter is one which is left to the charter of and local laws affecting the particular municipality involved. In the event the answer cannot be found in the charter or relevant local statutes the general rule in other jurisdictions appears to be that in the absence of a controlling statute a mere plurality of votes will suffice. See e.g. 29 C.J.S. Elections 241. OPINION 67-298 (Unofficial) August 16, 1967 You have inquired as to the constitutionality of Ga. Code Ann. 91-117 (Ga. Laws 1961, p. 47) and whether the Authority would be authorized to expend funds appropriated through the 414 Department of State Parks for the construction of highways, bridges and other capital improvements on the Lake Lanier Islands which are held by the Authority under a fifty (50) year lease with the Federal Government. The Attorney General does not render opinions as to the constitutionality of statutes except to the extent necessary for a proper resolution of the precise issue at hand. Op. Att'y Gen. 1962, p. 36. Ga. Code Ann. 91-117 pertains only to "real estate held by the State." However, the land presently under discussion is held by the Authority. An authority is not the State. Sheffield v. State School Building Authority, 208 Ga. 575 (1952). In light of the fact that this law is inapplicable to the present situation, I find it unnecessary to address the constitutional question. In answer to your second question, the Department of State Parks is authorized to contract with the Authority for the purchase of services. Of course, the Parks Department would be unable to purchase any service which it lacked the authority to perform for itself, if it so chose; for the State cannot do indirectly that which it cannot lawfully do directly. Agricultural Commodities Authority v. Balkcom, 215 Ga. 107 (1959); State Ports Authority v. Arnall, 201 Ga. 713 (1947). I find that the Parks Department is precluded from constructing or contracting for the construction of roads and bridges since Ga. Code Ann. 43-126 (Ga. Laws 1937, p. 264, as amended) directs the State Highway Department to perform those services for the Parks Department. With regard to capital improvements in general, it is my official opinion that, aside from any other limitation, the Parks Department is prohibited by Ga. Code Ann. Ch. 43-1 from constructing or contracting for the construction of any permanent improvement to land which is neither encompassed in the State park system nor under its control. OPINION 67-299 (Unofficial) August 17, 1967 You requested my opinion as to whether a custodian of a custodian savings account with a local savings and loan association 415 would be considered a "fiduciary" as defined in Ga. Code Ann. 16-432. The information you attached to you'r request indicates that the mother of a child will act as custodian for the child in dealing with a savings account which will be given to the child by her grandmother. Ga. Code Ann. 16-432 provides in pertinent part as follows: "A State chartered association, or a Federal savings and loan association, may issue shares in the name of an administrator, executor, guardian, trustee or other fiduciary, in trust, for a named or an unnamed beneficiary or beneficiaries." A fiduciary has been defined as a person whose relation to another is such that he is under a duty to act for the benefit of the other as to matters within the scope of the relation. Restatement (Second) of Trusts 2, Comment b (1959). The term fiduciary includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations. Kinzbach Tool Company v. Corbett- Wallace Corp., 138 Tex. 565, 160 S. W.2d 509. The type of relationship you describe would, in my opinion, be included in the definition of fiduciary which the legislature intended when they passed the statute in question. I therefore believe that the custodian of a custodian savings account would be included in the language of the statute. OPINION 67-300 (Unofficial) August 17, 1967 You state the following: (1) The Board has been made aware of the fact that certain registered voters, who own business property within the city and at some time in the past had their legal residence in the city, have now moved into the county and continue to vote in city elections. Since their legal residence, that is, the voter and his family residence, is without the city limits of Columbus and within the confines of Muscogee County, can such persons who are otherwise qualified to vote, vote in city elections? (2) If, in (1) above, the voters owned no property within the city limits, would this bar them from voting in city elections? 416 (3) The Board has presently before it a situation wherein a voter resides with his family in Harris County and has filed for his Homestead Exemption in Harris County and is voting in Muscogee County elections. At one time said person resided in Muscogee County and still owns property in Muscogee County. He is not a registered voter in Harris County. Can such a person who resides without the county but who owns real property within the county vote in said county's elections? (4) If, in (3) above, the person owned no property in Muscogee County and only worked in said county, would this bar him from voting in county elections? 1. With respect to your initial question I feel that I should defer to the City Attorney of Columbus. As you know, the Georgia Election Code expressly excludes municipal elections from its coverage, see Ga. Code Ann. 34-102, and the question of eligibility to vote in any particular city election involves a construction of its charter and local laws rather than statutes which are of state-wide application. I might note that in Harris v. McMillan, 186 Ga. 529 (1938) the Supreme Court of Georgia upheld a municipal charter which permitted persons owning property within the town of Savannah Beach to vote in municipal elections notwithstanding the fact that they resided outside the city limits (but within the county). 2. As in the case of your initial inquiry, the question of whether or not an individual who lives in the county may vote in a municipal election when he owns no property therein is a matter which depends upon the particular charter and local laws pertaining to such municipality. Hence, here too the question you ask IS one which is properly directed to the city attorney. 3. With respect to your third question, there is no question but that insofar as elections for county, State, and Federal offices are concerned, it is essential that an individual be a resident of the county in which he seeks to vote. Ga. Code Ann. 34-602(d). The term "residence" means "domicile" under the Election Code, Ga. Code Ann. 34-l03(aa), and hence mere ownership of property will not suffice. A person who votes in a county when he knows he is not (for residence or any other reason) qualified to vote therein is 417 guilty of a misdemeanor. Ga. Code Ann. 34-1929. In addition the board of registrars is charged with the duty of examining from time to time the qualifications of each elector whose name is listed as a registered voter, and, after opportunity for hearing, a nonresident's name is properly stricken from the list of electors. See Ga. Code Ann. 34-627. 4. In answer to your fourth question; suffice it to repeat that the test of voting eligibility in county, State and Federal elections involves residence (or domicile) and hence employment andjor property ownership are wholly irrelevant. OPINION 67-301 August 22, 1967 You ask whether or not the State Board of Corrections may pay the medical expenses of an 83-year-old woman who was recently assaulted and raped by an escaped inmate from the Georgia Industrial Institute. It is the responsibility of the governmental unit or agency having physical custody of a prisoner to bear "all expenses relative to any escape and recapture." Ga. Code Ann. 77-309(e). It is my opinion that Ga. Code Ann. 77-309(e) does not authorize the State to pay the medical expenses of persons injured by escaped prison inmates. Therefore, it is my opinion that the State Board of Corrections may not pay the medical expenses of the victim of this assault. OPINION 67-302 (Unofficial) August 23, 1967 You requested an unofficial opinion as to the legality of form Wills in the State of Georgia. Ga. Code Ann. 113-102 provides: "No particular form of words is necessary to constitute a will. In all cases to determine whether an instrument is testamentary in character or not, the test is the intention of the maker to be gathered from the whole instrument, read in the light of the surrounding circumstances...." 418 Any writing expressing the intention of the testator and duly executed may be a Will provided it is intended by such instrument to convey no interest until after death. Ga. Code Ann. 113-301 provides: "All wills (except nuncupative wills) disposing of realty or personalty shall be in writing, signed by the party making the same or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of the testator by two or more competent witnesses." Except for a few limitations (such as the rules against perpetuities, charitable devises to the exclusion of the wife and children, the exclusion of the wife from her right of dower or year's support, and unlawful or illegal devises) one may dispose of his property in Georgia by Will as he pleases provided the description of the property is sufficiently accurate for the intention of the testator to be determined. Where the language of a Will is clear and can be given legal effect as it stands, the courts will not, by construction, give the Will a different effect. Ga. Code Ann. 113-108, provides: "If a will is legal in part and illegal in part, that which is legal may be sustained, unless the whole win so constitutes one testamentary scheme that the legal portion alone cannot give effect to the testator's intention; in such case the whole will shall fail." OPINION 67-303 (Unofficial) August 23, 1967 You requested an unofficial opinion as to the legality or illegality of such games as bingo, cake walks and raffles. I am enclosing a copy of an opinion of the Attorney General, Op. Att'y Gen., 1958-59, p. 77, which stated that gaming is prohibited under Georgia law, and bingo is included within the definition of gaming. It also states that any game that constitutes a lottery is prohibited. The most recent decision prohibiting a lottery in Georgia was rendered in April of this year. Boyd v. Piggly Wiggly Southern, Inc., 115 Ga. App. 628 (1967). 419 It is my opinion that the games you have referred to are prohibited under Georgia law. The fact that a religious or charitable organization is sponsoring the activity would not change its legal effect. OPINION 67-304 (Unofficial) August 23, 1967 You have inquired as to the legality of drawing a grand and traverse jury out of the regular order as specified in Ga. Code Ann. 59-203. The facts as related appear to be that in May, Judge Barrow drew grand jurors who were convened on July 5 for service in Oconee County. Your regular term of court begins on July 24. Although your facts do not state so, your reference to this "special" grand jury would indicate that the regularly empaneled grand jury for the January term had, prior to May, been discharged and it is upon that assumption that I am proceeding. There can be little question but that Judge Barrow is authorized to hold a special term of court and he may either compel the attendance of grand or petit jurors of a previous term, or to draw new jurors for the special term, according to the laws now in force. Ga. Code Ann. ~ 24-3009. Smith v. State, 12 Ga. App. 667 (1913) said at p. 671: "We may say, however, in passing, that we know of no reason why the judge cannot call a special term of court for the purpose of drawing a jury. Section 4876 [Ga. Code Ann. 24-3009] of the Civil Code provides that the judges of the superior courts are authorized to hold special terms for the trial of criminal cases or the disposition of civil cases, at discretion, and to compel the attendance of jurors of the previous term, or to draw new jurors. The language of the statute is broad, and it seems to us that the court may transact during a speical term any business it could transact at a regular term." Admittedly, the above quote from the Smith case, supra, is dicta but it would clearly seem to affirm the position that is set out in Ga. Code Ann. 24-3009, i.e., new jurors may be drawn for a special term of court. 420 The next question you posed was, "Does the phrase 'according to the laws now in force,' Ga. Code Ann. 24-3009, mean that the grand jurors drawn for the special term must be drawn at the close of the regular term, pursuant to Ga. Code Ann. 59-203." I think not for to do so would greatly inhibit the court's use of special terms for its business. Obviously, a court cannot foresee that a special term will become necessary and to require the court to draw a grand jury for a special term which may never be called is to require the court to perform a useless act, especially so in view of the fact that Ga. Code Ann. 24-3009 provides that when a special term is called, the judge may compel attendance of jurors of a previous term or. draw new jurors. The construction of a statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465,470 (1928). The only discussion of the term "according to the laws now in force" appears to be in Hulsey v. State, 172 Ga. 797, 806 (1931). The court referred to several old code sections which are now substantially codified as Ga. Code Ann. 59-106, 59-108, 59203, 59-701, all of which primarily deal with the method of selecting jurors. The court said in Hulsey, supra: "In Rafe v. State, 20 Ga. 60, it was said: 'The statutes for selecting jurors, drawing and summoning them, form no part of a system to procure an impartial jury to parties. They establish a mode of distributing jury duties among persons in the respective counties, subject to that kind of service, . . . and are directory to those whose duty it is to select, draw, and summon persons for jurors.' . . . In the last case [Pollard v. State, 148 Ga. 447-453] it was said: 'It is . . . said that statutes regulating the selection, drawing, and summoning of jurors are intended to distribute jury duties among the citizens of the county, provide for rotation in jury service, and are merely directory. . . . In the Rafe case, supra, it was ruled that such statutes . . . "are no part of a regulation to secure to parties impartial juries." It would perhaps be more accurate to say that such statutes are not primarily designed to secure to parties impartial juries.'" Therefore, I conclude that "according to the laws now in force" means as to the method of selecting the jurors and not as to the time of selecting same as that is determined in Ga. Code Ann. 24-3009, for purposes of this problem. It is interesting to note 421 that the Hulsey case, supra, would seem to say that even procedural defects in the summoning of the jurors have no bearing on the question of affording a defendant a fair trial, and that it was not error to overrule a challenge to the array based upon such procedural defects. Id. at p. 808-809. The case cited by counsel for 0. S. McGowan, Jr., i.e. Finnegan v. State, 57 Ga. 427 (1876), is inapplicable to your factual situation inasmuch as the problem in the Finnegan case was the drawing of a jury at an illegal term of court, whereas it is presumed that your term of court in question was a legally called special term pursuant to Ga. Code Ann. 24-3009. OPINION 67-305 (Unofficial) August 24, 1967 You request an interpretation of Section 5 of Ga. Laws 1967, p. 2084. Specifically, you have asked whether the jailer of Washington County may also be a deputy sheriff, and whether the jailer is subject to the supervision of the sheriff or the county commissioners. The pertinent parts of Ga. Laws 1967, pp. 2084, 2086, 5 are as follows: "[T]he Sheriff ?f Washington County shall be authorized to appoint two full-time deputies and a secretary . . . . The governing authority shall employ a jailer, subject to the approval of the sheriff, who shall be compensated in an amount to be determined by the governing authority of Washington County. The two full-time deputies, the secretary, and the jailer shall be paid in equal monthly installments from the funds of Washington County. It shall be within the sole power and authority of the sheriff during his term of office to designate and name the persons who shall be employed as fulltime deputies and secretary and prescribe their duties and assignments and to remove or replace any of such employees at will and within his sole discretion." Since the 1967 Act speaks in terms of the appointment of two full-time deputies and the employment of a jailer, it appears that the Act contemplates the employment of three people. 422 Your second question relates to the supervision of the jailer. The sheriff has custody of persons awaiting trial and of persons who are county prisoners. It is the responsibility of the sheriff to insure the safe and secure confinement of such prisoners. Howington v. Wilson, 213 Ga. 664 (1957); Ga. Code Ann. 77-101. A jailer is required to give the sheriff a bond for the faithful performance of his duty as jailer. Ga. Code Ann. 77-102. Although Ga. Laws 1965, pp. 2395, 2399, as amended by Ga. Laws 1967, p. 2084 authorizes the governing authority of Washington County to employ a jailer, it is my opinion that in the performance of his duties the jailer is subject to the control and supervision of the sheriff. You may also wish to give some consideration to the constitutionality of that portion of the 1965 and 1967 Local Acts which provides for the employment of a jailer by the county commissioners. Ga. Code Ann. 77-101, which my research indicates has not been repealed, provides that sheriffs are jailers "and have the appointment of jailers. . ."Art. I, Sec. 4, Para. l of the Constitution of Georgia forbids the passage of a special law "in any case for which provision has been made by an existing general law." As you know, "a general law may be repealed or modified by another general law, but it cannot be repealed or modified by a special or local law." State Highway Department v. H. G. Hastings Company, 187 Ga. 204, 205 (1939), and the cases cited therein. OPINION 67-306 (Unofficial) August 24, 1967 This is in reply to your recent request for information as to the manner of organization that should be used to accomplish the Groveland recreational project. You state that eighteen (18) counties are interested in the project which would consist, in part, of damming the Conoochee River to form a reservoir. Additionally, you state that the form of organization chosen must have the power to buy and sell land, issue bonds, control the use of land and carry out other functions relating to project development. It appears that a legislatively-created authority would best serve your needs. Traditionally, authorities have been given the powers 423 you mention and in many instances have also been granted the power of eminent domain. With regard to the issuance of revenue bonds, authorities are not subject to Georgia Constitution Art. VI I, Sec. VII, Par. I (Ga. Code Ann. 2-6001) which restricts debts which may be incurred by counties. Your use of the term "control the use of land" is not quite clear to me. If you mean control of land which it owns, an authority or any other land owner can limit the permitted uses of land, provided they are not contrary to the zoning ordinances or resolutions in effect. If, however, you refer to land-use regulation in the sense of governmental zoning restrictions over land which it does not own, an authority would have no such power. All zoning ordinances and resolutions must eminate from the municipalities and counties respectively. Finally, you have inquired as to the method of creation, powers and limitations of authorities. As indicated above, authorities are created by the General Assembly. lfthe proposed authority will not have State-wide jurisdiction, but is to be confined to a specific locality within the State, the creating statute must conform to Georgia Constitution Art, Ill, Sec. VII, Par. XV (Ga. Code Ann. 2-1915) which provides for the advertising and formalities incident to the introduction of local legislation. 3 E.G.L. Authority Financing, 5. Any attempt to specify in blanket fashion the powers and limitations of authorities would be futile since there are no absolute constitutional or statutory standards which govern them. As a general rule, as long as the purpose of an authority is a proper one and the constitutional requirements as to delegation of authority are met, the General Assembly has considerable latitude in conferring power on its authorities. Some of the powers frequently granted are as follows: (I) to purchase, lease and dispose of real and personal property; (2) to exercise the power of eminent domain; (3) to make necessary contracts, leases and conveyances; (4) to construct and acquire projects; (5) to accept federal loans and grants; (6) to issue revenue bonds; and (7) to have its property and interest on its bonds tax exempt. The liabilities of authorities are similar to those of private corporations. Authorities have no sovereign immunity and may sue and be sued in contract and tort. 424 Consideration has been given to the possibilities of conducting the project as a multi-county endeavor under Ga. Code Ann. Ch. 69-6 or as a Soil and Water Conservation District project under Ga. Code Ann. Ch. 5-18 thru 22. However, it is felt that there would be many probl.ems attendant with the utilization of either of these methods, and it is suggested that you contact your County Attorney as to their feasibility in your area. OPINION 67-307 (Unofficial) August 24, 1967 You inquired whether or not a justice of the peace may accept a cash bond in a traffic case. The Attorney General's office on April 19, 1955, rendered an unofficial opinion wherein the Attorney General declared that there was no authority for a justice of the peace to accept or authorize the acceptance of cash bonds in or to try misdemeanor cases growing out of violations of the traffic laws of the State. Op. Att'y 195456, p. 94. As a matter of information, the court of ordinary has exclusive jurisdiction over all misdemeanor traffic cases arising in the county outside of the limits of municipal corporations, while the recorder's court in each municipal corporation has exclusive jurisdiction over those cases arising within the corporate limits of the municipality. Ga. Code Ann. 92A-51l. The foregoing rule does not apply, however, in counties having a city court or a county court, both of which have county wide jurisdiction. Ga. Code Ann. 92A-5ll. Therefore, it is my unofficial opinion that a justice of the peace would not be authorized to accept a cash bond in cases arising out of traffic violations. OPINION 67-308 August 25, 1967 You requested an official opinion concerning the administration of a part of the department of which you serve as Director. Specifically you requested an official opinion on the following question: 425 Whether the language of Section 7 of the Children and Youth Act of 1963 [Ga. Code Ann. 99-207] confers upon the Director of the Department of Family and Children Services the authority to direct as a superior officer the performance of the duties of the Director of the Division for Children and Youth and to exercise control over the day-to-day functions and activities of the Division for Children and Youth and the institutions under its jurisdiction. By Ga. Laws 1963, pp. 81, 91, as codified in Ga. Code Ann. 99-207 the following powers, duties and responsibilities are given for the Director of the Division for Children and Youth: The Director shall be the executive head and administrative officer of the Division for Children and Youth. He shall perform the duties required of him by provisions of this Chapter, and as may otherwise be required of him by policies, rules and regulations established or promulgated by the board. He is charged with administration and supervision of the division and the facilities and institutions of the division, and shall enforce the provisions of this Chapter and the policies, rules and regulations of the board. He is authorized and empowered, subject to the provisions of this Chapter and such policies, rules and regulations of the board, to exercise all authority and power and perform all duties, functions and responsibilities vested in the division by provisions of this Chapter or any other provision of law, State or Federal, and may delegate performance of the same or any part thereof to any one or more employees of the division. He shall prescribe such forms, establish such procedures, and secure such reports, data and information from State, county and municipal officials and employees as may be necessary and appropriate to the efficient administration of the division, to the ultimate accomplishment of the purposes of this Chapter, and to the performance of duties and functions of the division as set forth in this Chapter. The Director of the division shall perform the above duties and functions under the supervision of the Director of the Department of Family and Children Services. As you will note from the above stated section and as you noted in your request, provision is made so that "the Director of the 426 division shall perform the above duties and functions under the supervision of the Director of the Department of Family and Children Services." The cardinal rule when construing a statute is to ascertain and thus effectuate the true intent of the legislature when the legislation was passed. Lamons v. Yarbrough, 120 Ga. 895, 898 (1904). Additionally, another rule of statutory construction provides that "where a legislative act is plain, unambiguous and positive, and not capable of two constructions, the act must be taken to mean what it says and judicial interpretation is forbidden." Fulton County Employees Pension Board v. Askea, 95 Ga. App.77 (1) (1957). With the above rules of statutory construction in mind, the statutes in regard to the State Department of Family and Children Services and the Division for Children and Youth will be examined. By Ga. Code Ann. 99-204 the Division for Children and Youth is under the " . . . supervision and direction of a State Board for Children and Youth." Additionally, by Ga. Code Ann. 99206(a) provision is made as to the duties of the State Board of Children and Youth, as follows: The board shall serve as an administrative board for the Division for Children and Youth. The board shall perform duties required of it by provisions of this Chapter, and shall, in addition thereto, be responsibile for adoption of all policies and promulgation of all rules and regulations not in conflict with provisions of this Chapter that may be necessary and appropriate to the administration of the division, to the accomplishment of the purposes of this Chapter, and to the performance of the duties and functions of the division as set forth in this Chapter. Finally, by Ga. Code Ann. 99-209([), the legislature expressed the relationship of the Division for Children and Youth to the Department of Family and Children Services as follows: The Division for Children and Youth is constituted a division of the Department of Family and Children Services for convenience and administrative purposes, and said department shall furnish personnel office and business administration services to the division in order to effectuate 427 administrative economy in the operation of the division and to prevent duplication of administrative costs. By the language of Ga. Code Ann. 99-207, it is clear that the General Assembly intended for the Director of the Division for Children and Youth to have the authority, subject to the powers and duties placed in the State Board for Children and Youth, to have full control of the administrative day-to-day functions, operations and activities of the Division for Children and Youth. This is shown by the fact that Ga. Code Ann. 99-207, supra, states that the Director " . . . is charged with administration and supervision of the division and facilities and institutions of the division, and shall enforce the provisions of this chapter and the policies, rules, and regulations of the board." Additionally, the above section states that the Director " . . . is authorized and empowered, subject to the provisions of this chapter and such policies, rules and regulations of the board, to exercise all authority and power and perform all duties, functions and responsibilities vested in the division by provisions of this chapter . . . ." Therefore, it is my official opinion that the Director of the Division for Children and Youth is empowered and authorized to perform and supervise the day-to-day functions, operations and activities of the division, subject to the authority placed in the State Board for Children and Youth, and subject to the general control, administration and supervision of the Director of the Department of Family and Children Services as to general policy decisions necessary for the performance of the functions placed by statute on the Division for Children and Youth. OPINION 67-309 (Unofficial) August 25, 1967 You state that you purchased two automobiles on June 30, 1967 with the understanding that the 1967 ad valorem taxes had been paid since the due date was April l. You ask what procedure you should follow since the seller, R.B. Askew Company, refuses to pay the 1967 ad valorem taxes. It appears from your letter that R. B. Askew Company owned the property on January 1 and is responsible for the taxes. Based upon what you say, it seems that you would have a claim against 428 the seller for a breach of warranty under the "Uniform Commercial Code" which provides, in part, as follows: "( 1) Subject to subsection (2) there is in a contract for sale a warranty by the seller that (a) the title conveyed shall be good, and its transfer rightful; and (b) the goods shall be delivered free from any security interest or other lien or incumbrance of which the buyer at the time of contracting has no knowledge. "(2) A warranty under subsection (1) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have. . . ." Ga. Laws 1962, pp. 156, 185; (Ga. Code Ann., 109A-2-312). You are aware, of course, that license plates cannot be purchased for the motor vehicles until the ad valorem taxes have been paid and that there is a lien against the motor vehicles which could be enforced by the taxing authority. In view of these factors, you may want to pay the taxes and then proceed against the seller under the provisions of the above Code Section. OPINION 67-310 (Unofficial) August 28, 1967 You requested an opinion as to whether you violated any law that would warrant the seizure of four fifths of whiskey from your car by officers in Ludowici, Georgia. Ga. Code Ann. 58-1065 makes it unlawful for anyone to have in his possession whiskey on which no Georgia tax has been paid. Such is declared to be contraband and may be seized by peace officers. There is a provision in the Regulations of the State Revenue Commissioner, Rule 1003, whereby you may transport non-taxpaid whiskey through Georgia from a point outside Georgia to a destination point outside Georgia, but only after complying with the requirements specified therein and receiving a permit. OPINION 67-311 (Unofficial) 429 August 28, 1967 You requested an opmwn concerning the effect of the 1966 Practice and Procedure (Subpoena) Act (Ga. Code Ann. 38801, 38-802; Ga. Laws 1966, p. 502). Your question was what are the rights of (I) a law enforcement officer (2) a resident witness of the county in which the action is pending and (3) a non-resident witness to per diem and mileage fees. As you know, the 1966 Act was intended to be a comprehensive revision of the former subpoena procedure. The 1966 Act expressly replaced in their entirety and repealed all prior laws on the subject, specifically Ga. Code Ann. Chs. 38-8 and 38-9, as well as Ga. Code Ann. 38-1501, 38-1501.1, 38-1502, 38-1504, 38-1508, and the criminal subpoena provisions, 38-1902 and 38-1903. The 1966 Act, then, is the sole source of authority to make per diem and mileage payments. Section 2 of the Act (Ga. Code Ann. 38-802) states that it "shall apply to all civil cases and, insofar as consistent with the Constitution, to all criminal cases." Subsection I(d) is the provision of the Act which is relevant to the payment of fees. It reads as follows: "Fees; Mileage. The witness fee shall be four dollars ($4.00) per diem and execution shall be issued by the clerk upon affidavit of the witness to enforce payment thereof. The payment of fees shall not be demanded as a condition precedent to attendance, but when a witness resides outside the county where the testimony is to be given, service of the subpoena to be valid must be accompanied by tender of the fee for one day's attendance plus mileage of eight (8) cents per mile for traveling expenses for going from and returning to his place of residence by the nearest practical route. Tender of fees and mileage may be made by United States currency or postal money order, or by cashier's or certified check. When the subpoena is issued on behalf of the state, or an officer, agency or political subdivision thereof, or a defendant in a criminal case, fees and mileage need not be tendered." (Emphasis added) 430 When applied to the three categories of individuals about which you inquired, the Act would appear to be best construed as follows: (1) A state officer or agent is to be treated as an ordinary witness and will follow the same procedure and payment as is set forth in the provisions of Ga. Code Ann. 38-80l(d). It is to be noted, however, that if the state officer is a witness for the state, an officer, agency or political subdivision thereof, or a defendant in a criminal case, then fees and mileage need not be tendered as a condition precedent to appearance. (2) As for the average citizen, the question would not seem to be whether they were due remuneration, but when such per diem and mileage must be paid. The legislature, in the interest of practicality, has determined that the subpoenaed witness residing outside the county has a right to tender of at least the first day's fee ($4.00) and mileage (eight cents per mile) to and from his residence. Service of the subpoena must be accompanied by tender of the above payment to a non-county resident or the subpoena is invalid. (This Caveat would appear to have been written into the bill to insure that a witness of limited financial means could afford to travel to the place he is to testify.) (3) Since the Act is silent with respect to the rights of a county resident, it would seem that this class of witness still has a right to the per diem witness fee, but the exact time of such payment is within the discretion of the court. (It would appear that the legislature felt no great financial hardship would be created for a county resident such as would be present in the case of a non-resident who might have to travel a considerable distance.) This interpretation originates from the construction of the sentence "The payment of fees shall not be demanded as a condition precedent to attendance, but when a witness resides outside the county where the testimony is to be given, service of the subpoena to be valid must be accompanied by tender. . . . " From this wording it can be concluded that a resident of the county from which the subpoena originates is entitled to payment of the witness fee but, however, he cannot demand prepayment as a condition to his appearance in court. OPINION 67-312 (Unofficial) 431 August 28, 1967 You requested information on the Georgia law with respect to Uniform Commercial Code (U.C.C.) Financing Statements. The following are answers to your five questions: (I) Yes, the State of Georgia does use the U.C.C. Financing Statement. (2) A general description of the types of equipment should be sufficient. A filed financial statement which states a maturity date of five years or less is effective until the stated date and thereafter for a period of 60 days; if no maturity date is stated, lapse occurs five years from the filing date. (3) The address to which statements should be mailed for filing would be that of the Clerk of the Superior Court in the county of the debtor's principal place of business in this State; if he has no fixed place of business in the State, then file the statements in the county where the property is kept or used in this State. (4) The uniform fee for filing an original or continuation statement, according to a 1964 amendment to the U.C.C. Act, has been set at $2.50; by the same amendment, the release fee was established at $2.00. (5) A general outline of the statement format is described in Ga. Code Ann. l09A~9~402(3). We understand that the forms may be purchased in bulk form from the I van Allen Company, Atlanta. We suggest that any subsequent transactions into which your organization enters should be discussed more fully with your regularly retained counsel. OPINION 67-313 (Unofficial) August 29, 1967 You wrote concerning the liquor license eligibility problem referred to you by Mr. Sidney Haskins. It is my opinion that, regardless of how one might attempt to more logically construe the language of Ga. Code Ann. 58~ 1074, 432 the section as written is susceptible to only one meaning. Under the provisions of this section, the Revenue Commissioner is prohibited from issuing a retail liquor sales license to any applicant who: (1) cannot comply ~ith the requirement that he be a resident of both State and County for 12 months prior to his application, or (2) is not a resident of a "county in which liquor may be legally sold under this chapter". I construe the word "or" used in this Code section to have a conjunctive, not a disjunctive, meaning. The County Ordinary where the applicant resides must certify both that the applicant has resided in a particular county of the State for the last 12 months and that the county is "wet". To read this section, which is a general law designed for statewide application, in an alternative sense would be to disregard the legislature's express design to very narrowly control the sale throughout the State of intoxicating beverages. Such an alternative construction would permit a County resident of 12 months to sell liquor in a "dry" county and permit a non-resident to sell liquor in a "wet" county. Because it was designed as general legislation, the section is admittedly too restrictive to compensate for the unique situation to which you have drawn my attention. However, the Revenue Commissioner must give statewide application to a general law; and, until the law is amended, he will have to control the exception by the general rule. OPINION 67-314 August 30, 1967 You wrote concerning the propriety of censoring the correspondence of prison inmates. There appear to be no Georgia statutory provisions or case law related to your inquiry. The federal courts, however, have consistently recognized that examination and censorship of a prisoner's correspondence are inherent in the administration of penal institutions and that such procedures are not violative of a prisoner's constitutional rights. Adams v. Ellis, 197 F.2d 483 (5th Cir. 1952); Hatfield v. Bailleaux, 290 F.2d 632 (9th Cir. 1961); Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954); McClosky v. State of Maryland, 337 F.2d 72 (4th Cir. 1964); Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965). 433 The restrictions upon communications are not themselves violative of a prisoner's constitutional rights; however, if the effect of such restriction is to deny a prisoner a recognized right such as the right to counsel or access to the courts, such restriction may not be permissible. Turning to your specific inquiry, you inquired whether or not it would be permissible to censor the correspondence of prisoners other than that which is addressed to or received from the following: The Governor, Chairman of the Board of Corrections, Director and Assistant Directors of the Board of Corrections, the sentencing Judge, and members of the State Board of Pardons and Paroles. In the area of attorney-client relationships, for example, permissible censorship probably is a matter of degree. Inspection of such communications is clearly permissible. Bailleaux v. Holmes, 177 F. Supp. 361 (D.C. Oregon 1959); in re Bull, 123 F. Supp. 389 (D.C. Nevada 1954). It appears that permissible censorship in this area turns upo.n the particular facts and circumstances of the case. _Lee v. Tahash, supra, states that the retention of the particular letters in that case was not violative of the right to communicate with counsel but does not attempt to deal with or specify such situations as might amount to a denial of that right. It appears that if the censorship is so extensive as to deny any effective communication between the attorney and the client, it may possibly be violative of the right to effective assistance of counsel. It is my opinion that prison officials may inspect correspondence between attorneys and their, Clients, and that reasonable censorship of such correspondence may be imposed. This area is, of course, an exception to the general rule allowing restriction, inspection, and censorship of the correspondence of prison inmates. Therefore, in answer to your specific inquiry, it is my opinion that the correspondence of prison inmates may be inspected and that reasonable censorship may be imposed. OPINION 67-315 August 31, 1967 You have requested my opinion as to whether or not Ga. Code Ann 56-3009 would apply to an insurance policy issued prior to July 1, 1956, which was the effective date of the first enactment of the present statute. That statute prohibits, with certain exceptions, 434 insurers from issuing policies of accident and sickness insurance which are renewable or cancelable at the option of the insurer unless at the time the insurer cancels he tenders a refund of 75% of the difference between the monies paid and the payments received in cases where the amount of premiums exceed the amount of payments. The issue presented is whether each renewal of the insurance policy is merely a continuation of the original policy or a separate and distinct contract of insurance, in which event if the renewal occurred after July 1, 1956, it would make Ga. Code Ann. 563009 applicable to the renewed contract. A renewal agreement of insurance has been stated by most jurisdictions to be a new, and a separate and distinct contract unless the intention of the parties is clearly shown that the original and renewal agreements shall constitute one continuous contract. Such a contrary showing must be in clear and unambiguous terms and must be found within the four corners of the policy. Great Am. lndem. Co. v. State, 229 S. W. 2d 850 (Tex. Civ. App. 1950) error refused, and cases cited therein; 13 Appleman, Insurance Law and Practice 7648 (1943). A case quite close to your question is Flax v. 0' Dea, 263 N. Y.S. 2d 987, 48 Misc. 2d 5 (Sup. Ct. 1965) where the court held that the renewal of a policy where the insurer has the right or option to terminate it is equivalent to the issuance of a new policy and makes applicable any statute in effect at the time of renewal. The next problem is whether or not the policy is renewable or cancelable at the option of the insurer since the statute only applies to this type of accident and sickness insurance. I assume, for the most part, that the policy provisions are clear and would control your determination on this point. As you are undoubtedly aware, however, in the event of an ambiguity in the insurance policy so that a provision is capable of more than one interpretation, it is well established that the ambiguity should be resolved in favor of the insured and against the insurer. Dunn v. Traveler's Indemnity Co. 217 Ga. 426 (1961). Therefore, it is my opinion that Ga. Code Ann. 56-3009 would apply to insurance policies issued prior to July 1, 1956. OPINION 67-316 435 September 5, 1967 You have requested my opinion as to whether the Georgia Prison Industries Administration must utilize the office of the Supervisor of Purchases to buy raw materials which will be used in the manufacture and production of products for resale. When the legislature created the office of the Supervisor of Purchases, its intent was to require competitive bidding for all State purchases, with certain exceptions enumerated in the Act. The jurisdiction of the Supervisor of Purchases was to extend to " ...the purchase of all supplies, materials and equipment required by the State Government, or any of its departments, institutions or agencies. . . ." (Ga. Code Ann. 40-1902(A) ). In creating the Georgia Prison Industries Administration, the General Assembly declared that: "There is hereby created a body corporate and politic, an instrumentality and public corporation of this State. . . ." (Ga. Laws 1960, p. 880). Our inquiry therefore must be directed to whether or not the courts would decide that this body is a State department, institution or agency for the purpose of including it within the jurisdiction of the Supervisor of Purchases. In deciding this matter, the courts would determine what was the intent of the legislature in passing the statute creating the Prison Industries Administration. When the courts construe statutes, the cardinal rule they follow is to look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy. (Ga. Code Ann. 102-102(9) ). By requiring competitive bidding, the General Assembly hoped to obtain for the State the lowest possible prices consistent with acceptable standards of quality. Furthermore, it wanted to avoid the great deal of criticism being leveled by the public at the private granting of contracts for State purchases. With these purposes in mind, and nothing to the contrary appearing in the statute creating the Administration, I believe the courts would decide that the General Assembly intended the Administration to be subject to the Supervisor of Purchases and its attendent safeguards for the purchase of State supplies. 436 Since I have decided that the Administration is subject to the laws of the Supervisor of Purchases, my next concern is whether there is anything in those laws which would exclude such purchases from the jurisdiction of the Supervisor of Purchases. A section of the purchasing law possibly relevant to this consideration is the provision that the State purchasing law is not applicable to the distribution and purchase of goods, wares or merchandise manufactured, produced or mined wholly or in part by inmates of various State institutions. (Ga. Code Ann. 40-1927). However, as the language clearly shows, this only applies to items after they are produced by the inmates and it has nothing to do with the purchase of raw materials from which these items are made. After a search of the applicable law, I find nothing which would exclude such purchases from the jurisdiction of the Supervisor of Purchases. It is therefore my opinion that the Georgia Prison Industries Administration must utilize the Supervisor of Purchases in buying raw materials which will be used in the manufacture and production of products for resale. OPINION 67-317 September 5, 1967 You wrote concerning the eligibility for membership in the Firemen's Pension Fund of an individual who joined the Fund on May 5, 1959, requested and received a refund of dues paid into the Fund on March 19, 1963, but continued employment as a fireman until he went on strike September 2, 1966, and was discharged September 21, 1966. He was rehired on April 25, 1967, and has made application for membership within four months of being rehired. In your request you specifically direct my attention to the provisions of Ga. Code Ann. 78-1015, especially the second paragraph. It is my opinion that the applicant cannot apply under that paragraph since it provides for reinstatement only if the fireman applies within six months from the time he withdrew his contributions. In the fact situation you present, the fireman has waited longer than six months and he is therefore not eligible under that paragraph. 437 The fourth paragraph of Ga. Code Ann. 78-1015 would only apply if the fireman had waited to withdraw his contributions until leaving fire service. Since this particular fireman withdrew his contributions long before leaving, this fourth paragraph would not apply. However, it is my opinion that this fireman can apply for membership under the general entrance provisions of Ga. Code Ann. 78-1005. Under this provision, anyone who becomes a fireman may apply for membership within four months. There is nothing to indicate that a fireman who has previously withdrawn his membership cannot rejoin in the status of a new member. But, Ga. Code Ann. 78-1015, 3d paragraph, provides that anyone who withdraws and fails to meet the requirement of that particular section for reinstatement shall forfeit all rights to credit for previous years' service. Since this fireman fails to meet those requirements, he must forfeit his credit for previous years' service. It is therefore my opinion that this individual is entitled to membership, but his status is that of a new member. OPINION 67-318 (Unofficial) September 5, 1967 You requested my opinion as to the legality of a municipality's delegating to a committee the authority to contract for fire insurance on municipal property. l further preface these remarks by pointing out to you that in large measure, each city and town is governed and controlled by its own code of laws contained in its own charter. Therefore, in order to make any legal assessment of a municipality's authority to delegate powers, the specific charter and laws should be examined. As a general rule, however, municipalities cannot delegate legislative or judicial authority, but may delegate administrative and executive authority. 2 McQuillin's Municipal Corporations 10.40 - 10.43 (3rd Ed. 1966). I assume that the decision to insure the municipal property has already been made by the proper officials and that the delegation is only as to the mechanics of procuring this insurance. This would be, in my personal opinion, more in the nature of an administrative task and one that could be delegated. 438 As to whether any particular committee discriminates against insurers by placing this fire insurance through an association to which all insurers do not belong, l cannot answer since I do not have all the facts. Further, this problem is one which would more properly address itself to a private attorney and I would suggest that you discuss this with your corporate counsel if you wish to pursue it further. OPINION 67-319 (Unofficial) September 5, 1967 You wrote requesting answers to the following questions: 1. Does the State of Georgia have a statute which defines a ''psychopath''? 2. Does the State of Georgia provide special treatment for such individuals when they commit a crime? 3. If the State of Georgia does have such a statute, when was it enacted? In answer to your first question as to whether Georgia has a statute which defines a psychopath, there is no satutory definition of a psychopath in the Georgia Laws. The only statutory definitions of persons who are insane or who are mentally deranged are found in Ga. Code Ann. Title 26, Crimes and Punishment, and Ga. Code Ann. Title 88, Public Health. The provisions of Ga. Code Ann. 26-301 state that: "A person shall be considered of sound mind who is neither an idiot, a lunatic, or afflicted with insanity, and who has arrived at the age of 14 years, or before that age if such person knows the distinction between good and evil." Under the statutory provisions for the hospitalization of the mentally ill under the Public Health Title of the Georgia Code (Ga. Code Ann. 88-501 (a) ) defines a mentally ill person as "a person who is afflicted with a psychiatric disorder which substantially impairs his mental health; and because of such psychiatric disorder requires care, treatment, training, or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides and shall include, but not be limited to, 439 any mental retardation, alcoholism, or drug addiction when due to or accompanied by mental illness, or, mental disease, or, in the case of any mental retardation, when the mentally retarded person is incapable thereby of making satisfactory adjustment outside of a psychiatric hospital." The only definition of a psychopath is found in the decisions of the Georgia Supreme Court. In the case of Handspike v. State, 203 Ga. 115, 119, 45 S.E. 2d 207 (1947) the Supreme Court of Georgia defines "psychosis" as "A psychiatric term denoting a serious mental derangement." In the case of Davis v. State, 153 Ga. 154, 159, 112 S.E. 280 (1922) the Supreme Court of Georgia referred to Webster's New International Dictionary for its definition of "psychosis." Psychosis in this case was recognized to be "a disease of the mind; esp., a functional mental disorder, that is, one unattended with structural changes in the brain." In answer to your second question as to whether Georgia provides special treatment for such individuals when they commit a crime, several different provisions of the Georgia Code must be considered. Also, it is to be kept in mind that Georgia Laws do not specifically define a psychopath but revolve only around the provisions of Ga. Code Ann. 26-301, supra, which defines a person of unsound mind as one who does not know the distinction between good and evil. The provisions of Ga. Code Ann. 26-303 prohibit the conviction of a lunatic: "A lunatic or person insane, without lucid intervals shall not be guilty of any crime or misdemeanor with which he may be charged, provided the act so charged as criminal was committed in the condition of such lunacy or insanity; but, if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency." The method for raising the question of insanity is by a special plea of insanity. Once a plea of insanity has been entered, the procedure for determining this question and the provisions for the disposition of such a person, if he is found insane, are set forth in Ga. Code Ann. 27-1502: "Whenever the plea of insanity is filed, it shall be the duty of the court to cause the issue on that plea to be first tried by special jury, and if found to be true, the court shall order the defendant to be delivered to the superintendent of the Milledgeville State Hospital, there to remain until discharged in the 440 manner prescribed by law." Also the provisions of Ga. Code Ann. 27-1504 set forth further provisos concerning the trial of persons afflicted with lunacy and insanity: "No lunatic or person aft1icted with insanity shall be tried, or put upon a trial for any offense, during the time he is afflicted with such lunacy or insanity, which shall be tried in the manner hereinbefore pointed out [See Ga. Code Ann. 27-1502, supra] where the plea of insanity at the time of trial is filed, and, on being found true, the prisoner shall be disposed of in like manner." The foregoing provisions of Ga. Code Ann. 26-30 I, supra, which define a person of unsound mind and Ga. Code Ann. 271502 and 27-1504 which set forth the procedure for trial and disposition of an insane person were originally set forth in the Code of Georgia in 1933. Therefore, because of this time lapse, without any subsequent statutory inactment in this area, it is possible to explain the non-existence of a more encompassing statutory treatment ofthis subject. OPINION 67-320 (Unofficial) September 6, 1967 You asked whether or not all habeas corpus proceedings held pursuant to Ga. Code Ann. 88-517 must now be transcribed in accordance with Section 3 of the 1967 Habeas Corpus Act (Ga. Laws 1967, p. 835; Ga. Code Ann. 50-127[8] ), it is my personal unofficial view that the 1967 act would not require a transcript of all "mental illness" habeas corpus proceedings. It seems that a reasonable interpretation can easily be made that the entire Code 50-127 is inapplicable to the habeas corpus section of Ga. Code Ann. Ch. 88-5. Ga. Code Ann. 50-127 concerns itself with the exclusive procedures for suing out a writ by one restrained by virtue of a sentence imposed by a state court of record. Therefore I feel that the validity of my conclusion above turns on the interpretation of theword "sentence." Ga. Code Ann. 88-506(g) states that "the court of ordinary shall enter an order requiring said patient to be hospitalized . . . ." It would seem that a valid distinction can be made between an order committing one to a hospital and a sentence which confines one to imprisonment. A "sentence" in common parlance means a 441 pronouncement by a court of a penalty imposed on a defendant. See Washington v. Mays, 77 So. 2d 620 (Fla. 1955 ), and 3~ Words and Phrases, p. 596. This distinction can be further illustrated in State v. Johnson, 96 N.H. 4, 69 A. 2d 515 (1949), where the court held that a statute authorizing commitment of a person to a state prison or hospital because of mental derangement was not a sentence. See also People v. Rodriques, 222 C.A. 2d 221, 34 Cal. Rptr. 907 (1963). Furthermore, it would seem that the 1967 act makes at least an indirect distinction. The act repealed the old Ga. Code Ann. 50101 and in its place substituted a new section which is broken down into subsections (a), (b) and (c). In Code 101(a), the 1967 act gives a right to habeas corpus where one is "restrained of his liberty as a result of a sentence imposed by any state court of record ...." (Emphasis added.) The ordinary issues an order of commital but not a sentence which decides the legal consequence of one's guilt. It additionally appears that had the legislature intended Ga. Code Ann. 50-127 to apply in all cases such as in mental illness hospitalization or in child custody cases then it would not have entitled the new section "Exclusive Procedure" and would have repealed the remaining sections of Title 50. For these above mentioned reasons, it is therefore my personal view that Ga. Code Ann. 50-127 is inapplicable to habeas corpus cases arising other than under a sentence by a court of record. OPINION 67-321 (Unofficial) September 6, 1967 You requested an opm1on as to whether the Teachers' Retirement System can comply with a request of a member's widow. The deceased member had on file with the Teachers' Retirement System a beneficiary form 2C at the time of his death which under the operation of the Teachers' Retirement System at that time would only permit a lump sum cash settlement. It was thought that a member must have a beneficiary form 2E on file for his beneficiary to qualify for the monthly benefit. The widow did request a monthly benefit in lieu of the lump sum cash settlement at the time of her husband's death, but her request was denied because her husband had not filed the form 2E. She has renewed her request 442 at this time in light of a more recent ruling which allows the option to beneficiaries of a lump sum cash settlement or a monthly benefit if the only beneficiary form on file with the Teachers' Retirement System is form 2C. Of course, the deceased member had complied with all other requirements for a monthly benefit. It is my opinion, in view of the facts in this particular case, that the Teachers' Retirement System can comply with the member's widow's request. Through no fault of her own, she has been denied the right to choose the method of receiving her husband's retirement benefits. I particularly note that from the beginning of the case, she has requested a monthly benefit and only took the lump sum cash settlement when her first request was denied. I will leave to you the mechanics of settling the respective accounts and amount of monthly benefit with the understanding that if you require further assistance I will be most happy to help you. OPINION 67-322 September 7, 1967 You requested my opinion as to whether or not the Department of Industry and Trade may legally accept a grant of $10,000.00 from the Governor's Emergency Fund for the purpose of contracting with the City of Vidalia, Georgia, for the construction of a radio beacon at the Vidalia Municipal Airport. The Department of Industry and Trade is authorized by Ga. Code Ann. 40-2110 to accept a grant from the Governor's Emergency Fund, and it is my opinion that the Governor possesses authority to make such a grant to the Department pursuant to the powers and broad discretion granted him by Ga. Code Ann. 40408 and the 1967 General Appropriations Act, Ga. Laws 1967, pp.41,79. However, several problems arise concerning the manner in which such an emergency fund grant may be expended by the Department. First, Ga. Code Ann. 40-2111 provides that all funds received from grants or gifts "shall be used by the board to pay the expenses and costs of the operation of the Department." Operating costs are, generally speaking, not considered as encompassing construction or capital outlay expenses. The powers of public officers are defined 443 by law in Georgia, Ga. Code Ann. 89-903, and in the absence of an express or necessarily implied grant to do so by statute, public officers cannot lawfully pay out public funds. See Freeny v. Geoghegan, 177 Ga. 142 (1933). Secondly, the involvement of the Department of Industry and Trade with aviation and aviation facilities is pursuant to Ga. Code Ann. 40-2107 (i), which provides in pertinent part that the Board of Industry and Trade shall have the duty and power: "To plan for and establish a long-term policy in regard to the establishment, development, and maintenance of aviation and aviation facilities in the State; to promote and encourage the use of aviation facilities of the State for air commerce in the State. . . ; to cooperate, counsel and advise with the Aeronautics Advisory Board and the State Highway Board in regard to the planning, construction, development, and maintenance of airports, landing fields, and air navigation facilities in the State; to cooperate, counsel and advise with municipalities and other political subdivisions of the State... for the purpose of promoting and obtaining coordination in the planning for, and in the establishment of development, maintenance and protection of a system of air routes, airports... and other aviation facilities in the State." (Emphasis added). It is my opinion that under the foregoing provision the involvement of the Department of Industry and Trade in matters pertaining to aviation and aviation facilities is limited to an advisory role, and it is not authorized to furnish funds for, or engage in, the construction of airports or airport facilities. Lastly, the furnishing of funds by the Department for the construction of a radio beacon on a municipally owned airport would circumvent the prohibition of Ga. Code Ann. 91-117 which restricts the use of State funds for capital improvements upon property not owned in fee simple by the State. For the foregoing reasons it is my official opinion that although the Department of Industry and Trade may lawfully accept a grant from the Governor's Emergency Fund, such grant may not be utilized, by contract or otherwise, for the purpose of constructing a radio beacon at the Vidalia Municipal Airport. 444 OPINION 67-323 (Unofficial) September 7, 1967 In your letter you have asked that permission be given your company to print a replica of the State flag upon packets or envelopes containing sugar in order to promote the image of the State of Georgia in the minds of the millions of people who use your product. As you know, Ga. Code Ann. 86-1209 provides that it shall be unlawful to copy, print, publish or otherwise use the State flag for advertising or promotional purposes. Similarly, Ga. Code Ann. ~ 86-1210 provides that it shall be unlawful for any firm, person or corporation to mutilate, deface or defile the State flag. These laws, passed in the same legislative enactment are in pari materia and should be construed together. Evan v. Commissioners of Chatham County et al., 203 Ga. 730 (1948). Thus, notwithstanding the good intentions of your company to promote the State's image, I believe that the necessary result of such promotion would cause users of sugar to tear open the envelopes containing the sugar and then discard such packets and that the promotional plan would consequently fall within the prohibition contemplated by the General Assembly in the passage of Ga. Code Ann. 86-1209. OPINION 67-324 (Unofficial) September 7, 1967 You have requested my unofficial views regarding arrests by State Troopers of people violating dynamite ordinances passed by the Fire Marshal. This question specifically was asked: "If an automobile carrying dynamite without a permit is stopped and one or more of the subjects jump out and run and the occupants remaining in the car state the dynamite belongs to the persons who escaped, can a legal arrest be made of the persons remaining in the automobile?" Generally, the State Patrol has the power to arrest people for violating traffic laws, laws regulating the use, ownership and control of motor vehicles or for offenses committed upon the highway of the State. Ga. Code Ann. 92A-242. I would think that 445 carrying dynamite without a permit m an automobile is a law regulating the use of a motor vehicle or an offense committed upon the State highway and therefore would be proper jurisdiction for the State Patrol. The next problem is whether an officer would have grounds to arrest such persons without a warrant even though they protest that the dynamite belongs to others not apprehended by the officer. If police could not arrest suspects who claim "the other guy did it," then the jails would be empty. I doubt that the law would place a burden on the officer to ascertain who are the guilty parties in a moment's notice. It is enough to have reasonable grounds to believe a crime has been committed and that the suspects are endeavoring to escape, which assumption he could easily make since they are in an automobile. See Ga. Code Ann. 27-207. Further, in the event the mere possession of unpermitted dynamite is illegal, the officer could arrest these suspects without a warrant on the ground that the offense is being committed within his presence. Ga. Code Ann. 27-207; Weatherington v. State, 13 Ga. App. 408(1) (1913). However, since I do not have the appropriate laws before me, I cannot give an opinion on this point. OPINION 67-325 September 8, 1967 You requested my opinion as to the legality of contracting with an alien whose services are desired for consultation in the development of certain systems and in preparation of a policy and procedures manual. It is provided, inter alia, in Ga. Code Ann. 89-106 that: "No department of the State Government or any political subdivision thereof shall employ any alien for any purpose until a thorough investigation has been made and it is ascertained that there is no qualified American citizen available to perform the duty desired by the State of Georgia, any department thereof or any political subdivision thereof." It is further provided in Ga. Code Ann. 89-107 that: "Any department head or any official of any political subdivision in this State that violates the term of section 89106 shall be subject to removal from office by the Governor." 446 It is my understanding that the qualifications of the individual in question, and the nature of the services to be performed, do not fall within the statutory exception concerning a situation in which "there is no qualified American citizen available to perform the duty desired." It is therefore my opinion that the statutory prohibition cited above would clearly prohibit the establishment of an employer-employee relationship with the alien under consideration. The remaining question is whether the statute would preclude retaining the alien as an independent contractor. Although an independent contractor is for many purposes not considered an "employee," it is my opinion that this contractual relationship is also prohibited. The word "employ" is generally used in a broad sense and does not exclusively connote the formal relationship of employer and employee. The word "employ," in its sense as a transitive verb, is defined in Webster's New International Dictionary, Second Edition, as signifying: "to make use of the services of; to give employment to; to entrust with some duty or behest; as, to employ an envoy. This broad construction of the word "employ" was applied in Martin v. Mayer, 63 Ga. App. 387, 397 (1940), when the court, in discussing the relationship between a physician and his client, stated, "It would be a strained construction to say that a person had not been employed by another when he had been requested to d an act and had performed it." Clearly the intent of the General Assembly in enacting the legislation previously cited was to insure that preference would be given American citizens, whenever possible, in all instances in which personal services were desired by the State. It is therefore my opinion that the prospective contract with the alien in question is prohibited by law. OPINION 67-326 (Unofficial) September 12, 1967 Our division of the State Law Department is in receipt of your letter requesting our thoughts concerning the relieving of the Sheriff 447 of Glynn County, Georgia, of his statutory duties as jailer in the event the County of Glynn contracts with the City of Brunswick for jail facilities. I am pleased to acknowledge your letter. The below stated thoughts and suggestions are given on the basis of the following assumptions: First, that both the County of Glynn and the City of Brunswick through their legally constituted authorities possess and are capable and authorized to possess the necessary legally prescribed powers and the clear legal right to contract with each other with reference to facilities and services authorized by the Constitution of the State of Georgia. (See Brady v. Joiner, 101 Ga. 190 (1897), a case holding that a municipal corporation may lawfully contract with the proper county authorities for the use of a cell or room in the county jail as a place for confining municipal prisoners.) Second, that the only statutory duties of the sheriff concerned with in this letter are the statutory duties of the sheriff as jailer. The first question presented to the writer is what are the statutory duties of the sheriff when acting in the capacity as jailer? Ga. Code Ann. 77-101 states that "Sheriffs are, by virtue of their offices, jailers of the counties. . . ." (For control of jails and inmates in certain counties by county commissioners see 1910 Code of Georgia, 1159-1165.) The Supreme Court of Georgia speaking in the case of Howington v. Wilson, 213 Ga. 664, 665 (1957), regarding sheriffs and jails stated: "It is apparent from our statutes that the custody of a defendant, pending his trial under an indictment for a criminal offense, is in the sheriff of the county wherein the offense was committed, and the responsibility for his safe and secure confinement in jail is that of the sheriff." Giving as its authority for the above statement the Court cited Ga. Code Ann. 27-409, (Forms of Commitment), 27-801, (Bench Warrant; definitions; execution; who may take bond), 242013, (Duties of Sheriff), 24-2822, (Sheriff's fees and compensation, restrictions on), 77-101, (Sheriffs jailers; authority to appoint jailers), 77-102, (Oath and bond of jailer), and 77-108, (Record of prisoners to be kept). Regarding statutory duties of sheriff in connection with the county jail also see Tate v. N ationaf Surety Corporation, 58 Ga. App. 874 (1938). Ga. Code Ann. 77110 states that among the duties of the sheriff (presumably as a "Jailer" in Ga. Code Ann. Chapter 77-1) is that he: 448 "take all prisoners arrested, or in execution under any criminal or civil process, to the jail of an adjoining county, or to the jail of some other county when more accessible, if the jail of the county shall be in an unsafe condition, under such rules as are prescribed in this Code." (Emphasis added.) Ga. Code Ann. 27-416 without making any specific mention or reference to the sheriff states: "When there is no secure jail in a county, any person committing an offense in said county shall be sent to jail in the nearest county having a secure jail. ... " (Emphasis added.) Also, regarding insecure jails see James Revel, plaintiff in error v. The State of Georgia, defendant in error, 26 Ga. 275, 276 (1858), where the Supreme Court held: "If the jail of the county, where a conviction is had in a criminal case, is insecure, it is competent for the Court to order the prisoner to be committed to the jail of another county for safekeeping." (Emphasis added.) The 1960 General Assembly House Resolution No. 320-682, entitled "Duties Of Sheriff Of Glynn County," proposing an amendment to Ga. Const. Art. VII, Sec. VI, Par. I (Ga. Code Ann. 2-5901) states: "In the event the County of Glynn contracts with the City of Brunswick so that said city provides jail facilities for said county, the Sheriff of Glynn County, during the term of such contract, shall be relieved of his statutory duties as jailer and shall not be required to perform such duties. The city marshal of Brunswick shall perform such duties." It appears that the above stated proposed amendment of 1960 (Ga. Laws 1960, pp. 1232-1234) was duly adopted in the General Election of November, 1960. It further appears that the above stated proposed amendment of 1960 (Ga. Laws 1960, pp. 12311234) being Local Amendment No. 52 was declared to be a part of the Constitution of the State of Georgia effective November 18, 1960 (Ga. Laws 1961, Volume One;pp. 764, 771). The above stated Constitutional amendment appears to deal with only one subject matter, the Duties of Sheriff of Glynn County, which under the amendment can be established or altered only in 449 the event the County of Glynn contracts with the City of Brunswick regarding jail facilities. Upon reading and studying the above stated amendment the following question is presented to the writer. Does the above stated Constitutional amendment conflict with, or is it in harmony with, the statutory duties of the Sheriff as jailer? First let me say that the above stated Constitutional amendment does not specifically state that the Sheriff of Glynn County shall be relieved of all of his statutory duties as jailer. (Emphasis added.) Nor does the above stated Constitutional amendment spell out which of the statutory duties the Sheriff of Glynn County as jailer shall be relieved of. After the foregoing preface setting out the indefiniteness in the language in the above stated Constitutional amendment, it is difficult to determine the answer to the proposed question. However, looking to the probable intent behind the Constitutional amendment and more especially to the use of the word "shall" in the Constitutional amendment, I would believe more likely than not that the Constitutional amendment obligates and is not cumulative of the duties of the sheriff ,as jailer. Given this construction the Constitutional amendment would take preference over the existing statutory law. Ga. Const. Art. XII, Sec. I, Par. II. To add further strength to my reasoning, I call your attention to the fact that both the statutory and the case law cited above make provisions for the removal and transfer of a prisoner to a jail in another county only when the jail in the county which the prisoner is confined is in an unsafe condition. (Emphasis added.) If a contract as contemplated by the City of Brunswick and the County of Glynn is entered into then there would be only one county jail in Glynn County and as long as the jail facilities are safe, adequate, sanitary, properly ventilated and of sufficient construction, size and strength to contain and keep securely the prisoners which the county may confine therein, then I believe the duties of the Sheriff of Glynn County as jailor would be obligated during the term of such contract. I would, however, call your attention to the question of the risk of the surety on the bond which is raised in Tate v. National Surety Corporation, supra. I would likewise suggest, should a contract between the County of Glynn and the City of Brunswick be entered into, that the terms of the contract relate themselves to the Constitutional amendment and that the contract spell out in 450 specific detail each and every one of the statutory duties which the Sheriff of Glynn County as jailer is relieved of and not required to perform. An example of the latter would be: Is the Sheriff of Glynn County relieved of the duty set forth in Ga. Code Ann. 77-108? By the contract being specific then both the Sheriff of Glynn County and the City Marshal of Brunswick know their duties and responsibilities regarding jail facilities. OPINION 67-327 September 13, 1967 You wrote relating to the powers of security personnel at the various branches of the University System. You have asked whether a campus policeman is empowered to arrest a traffic violator off campus following a "hot pursuit" from the campus. Ga. Laws 1966, p. 370 (Ga. Code Ann. 32-168) empowers campus policemen and other security personnel who are regular employees of the University System to make arrests for offenses committed on property which is under the jurisdiction of the Board of Regents. Thus, if a traffic violation is an "offense" ~nd such offense has been committed on property under the jurisdiction of the Board of Regents, the violator could be arrested either on or off such property. However, I cannot say from the information given whether a traffic violation would constitute an "offense." A nonstudent is not, of course, subject to the rules and regulations of the Board of Regents. Consequently, in order to arrest a non-student for a traffic violation occurring on a campus of the University System, such violation must be a violation of a State law or city or county ordinance which embraces the campus streets. Accordingly, it should be ascertained whether campus streets are covered by such laws and ordinances before arrests are made. Moreover, if the campus streets have been dedicated to the city or county wherein such campus lies, there such streets would not be property under the jurisdiction of the Board of Regents and would thus preclude campus policemen from making arrests for offenses occurring on such property. See Op. Att'y Gen., 1960-61, p. 281. Secondly, you have asked whether the security personnel may patrol in unmarked vehicles. Campus policemen may patrol in unmarked vehicles but may not use such cars to make arrests for traffic violations. Ga. Laws 1953, Nov. Sess., pp. 556, 685, as amended. (Ga. Code Ann. 68-1707 .) 451 Thirdly, you have asked if campus police may assist other police jurisdictions when such assist'lnce has been requested and the campus police have been deputized by the police jurisdiction requesting assistance. In addition, you have asked whether the institution would have legal coverage in an accident arising out of such assistance. I can find no legal prohibition against campus police aiding other police jurisdictions upon request. If such assistance is given, the campus police would be acting as agents of the jurisdiction requesting the assistance and such other jurisdiction would be responsible for their actions. In addition, the Regents, as a department of the State Government would be immune from liability under the doctrine of sovereign immunity. This immunity, of course, would not extend to the individual policemen who could be personally liable for injuries arising from their negligence. Fourthly, you have asked whether the campus police, in situations involving offenses committed jointly by students and non-students, may turn the non-students over to the civil authorities and retain control of the students for handling by the college. I can find no legal prohibition against administratively handling college students involved in minor offenses upon property of the University System while turning non-students over to the civil authorities. However, I believe Ga. Code Ann. 26-460 I requires that students who have committed a felony must be turned over to the appropriate civil authorities. Finally, you have asked whether other police jurisdictions have authority to enter upon the property under jurisdiction of the Board of Regents legally; such land is subject to the police powers of every political subdivision of which it is a part. Thus, if a campus lies within a city, it would be subject to city, county and state police jurisdiction. In practice, however, the different police jurisdictions usually divide their responsibilities amongst themselves so that there is no overlap. See Up. Att'y Gen., 1960-61, p. 580. OPINION 67-328 (U nofficia1) September 13, 1967 This is in further reply to your letter of August 2, 1967, which was referred to this office by the Honorable Paul L. Hanes, Deputy Revenue Commissioner. 452 Your first question was whether the Board of Commissioners of Wilkes County can grant exemptions from ad valorem taxation to new industries for a certain period. The Board of Commissioners of Wilkes County cannot grant any exemptions from ad valorem taxation. The General Assembly may, by law, grant exemptions from ad valorem taxation but only on property enumerated in Art. VI I, Sec. I, Par. IV of the Constitution of Georgia of 1945 (Ga. Code Ann., 2-5404). Since property owned by private industries, new or old, is not enumerated in the above section, a constitutional amendment authorizing such exemption would be required. Your second question was as follows: " . . . can a Board of Tax Assessors legally assess tax values of such industries at a 'nominal' value, . . ." Ga. Code Ann., 92-6911 provides, in part, as follows: " . . . 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 betwee-n 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. . . " In view of the above Code Section it is obvious that the Board of Tax Assessors cannot place a nominal value on the property of new industries but must see that such valuations are equalized with the valuations placed on property owned by other taxpayers. OPINION 67-329 (Unofficial) September 15, 1967 You request our unofficial opinion as to whether farmers are required by law to have a city license for marketing produce which they grow on their own farms and market on the streets. I am pleased to call your attention to Ga. Code Ann. 5-603 which provides as follows: "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 453 (other than cotton), until after the expiration of three months from the time of their introduction into said corporations." Ga. Code Ann. 84-200 I additionally reads as follows: "Every peddler or itinerant trader, by sample or otherwise, shall apply to the ordinary of each county where he may desire to trade, for a license, which shall be granted to him on the terms said ordinary may impose. The ordinaries are authorized to impose such tax as they may deem advisable, to be used for county purposes. This license shall extend only to the limits of the county." However, agricultural products were exempted from the license provided for in Ga. Code Ann. 84-200 I by Ga. Code Ann. 8420 I0 which provides as follows; "None of the provisions of this Chapter shall extend to persons selling the agricultural products of any State, nor to persons selling agricultural implements, nor to persons engaged in the manufacturing and selling of jugs and flower pots." The next legislation on the subject of exempting agricultural products from taxes and licenses was passed in 1945 and is found in Ga. Code Ann. 5-606 and provides that: "All agricultural products in Georgia shall be exempted from taxes and licenses, except as herein stated." The exceptions are stated in the succeeding sections and relate to agricultural products imported into the State of Georgia from other states in the Union. A provision is made for the exemption of agricultural products grown in other states where the importing state also exempts Georgia products. Upon a search into the court decisions concerning the above quoted code sections the Supreme Court of Georgia held in the cases of Davis & Co. v. Mayor and Council of Macon, 64 Ga. 129 (1879); Gunn v. Mayor and Council of Macon, 84 Ga. 365 (1890); Georgia Milk Producers Confederation v. City of Atlanta, 185 Ga. 192 (1937); Rossman v. City of Moultrie, 189 Ga. 681 (1940); City of Atlanta, et al. v. Georgia Milk Producers Confederation, 187 Ga. 117 (1938), either directly or indirectly, that agricultural products are exempt from state, county and municipal licenses. 454 Under the above-quoted code sections and cases considered, it is my unofficial opinion that sellers of produce, or other direct farm products, who sell such products directly to the consumer are not required to pay city, county or state occupational or peddlers licenses. OPINION 67-330 (Unofficial) September 15, 19~7 Melvin Thompson has called to my attention an error in an opinion from this office dated June 19, 1967. The error involved a question of driver's licenses for temporary residents in the State of Georgia. This is to replace the previous opinion. In your letter, you asked the following questions: (1) A non-resident individual owns and operates a place of business in Floyd County, Georgia. This individual actually resides in the State of Alabama and returns to Alabama each night. Is it necessary for him to purchase a Georgia license tag? Is it necessary for him to obtain a Georgia driver's license? (2) A non-resident individual has been sent to Floyd County on temporary assignment by his employer. He rents a home here and has moved his family. The individual still maintains his residence in a foreign state. Is it necessary for this individual to purchase a Georgia license tag? Is it necessary for this individual to obtain a Georgia driver's license? (3) Assuming that this non-resident who is temporarily sojourning in Georgia is required to purchase a Georgia license tag, would he still be required to purchase said tag if he returned home once a month and was never in Georgia for a continuous period of thirty days? These questions are controlled by Georgia Code Section 68-221. This statute provides: "Motor vehicles owned by nonresidents of the State may be used and operated on the public streets and highways for a period of 30 days without having to register and obtain a license to do so or a chauffeur's license: Provided, that the owner or owners thereof shall have fully complied with the laws requiring the registration of motor vehicles in the State 455 or Territory of their residence, and that the registration number and initial letter of such State or Territory shall be displayed and plainly visible on such vehicle or vehicles. In other respects, however, motor vehicles owned by nonresidents and in use temporarily within the State shall be subject to the provisions of this law: Provided, no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State." Applying this statute to the facts given in Question No. I, I conclude that such non-resident would not have to purchase a Georgia license plate or obtain a Georgia driver's license. This question was determined by an earlier opinion of the Attorney General dated November 20, 1958. I attach a copy of this prior opinion. Under the facts given in Question No.2, a temporary resident of Georgia must purchase Georgia license plates. If a person domiciled in another State establishes a temporary residence in Georgia and remains in this State for a period of 30 days, he must purchase a Georgia license plate. He is allowed a 30-day grace period to purchase the license plate. Of course, if a person becomes domiciled, i.e., establishes his legal residence in this State, he must purchase a license plate in accordance with Ga. Code Ann. 6820 I, and obtain a driver's license in accordance with Ga. Code Ann. 92A-402. A person has 30 days to obtain a driver's license after establishing his domicile in Georgia. A person domiciled in another State who establishes a temporary residence in this State need not obtain a driver's license if he holds a valid driver's license from the State of his domicile. Ga. Code Ann. 92A-402(3). The fact that after establishing a temporary residence in Georgia a person takes occasional trips out of this State would not change this finding. The question is, has a temporary residence been established in this State and has such temporary residence continued for a period of more than 30 days. If the answer to this question is yes, the temporary resident must comply with Georgia motor vehicle registration laws. Therefore, the facts set out in Question No. 3 would not change the conclusion reached in Question No.2. 456 OPINION 67-331 (Unofficial) September 19, 1967 This is in response to your recent request for information. SJ?ecifically, you have asked: "(1) Whether or not you have state statutes guaranteeing the rights of interpreters to a deaf person; "(2) Citation of any cases that have been ruled on by the highest court of your State; and "(3) The usual procedure on a trial level in furnishing interpreters for the deaf." I am pleased to call your attention to Ga. Code Ann. 38-1609 which provides that: "No physical defect in any of the senses shall incapacitate a witness. An interpreter may explain his evidence." In Conner v. The State, 25 Ga. 515, 71 Am. Dec. 184 (1858), the Supreme Court of Georgia held that a trial judge is authorized to appoint an interpreter for a witness who through general debility is unable to speak in an audible voice. The same court held in Schall v. Eisner, 58 Ga. 190 (1877), that whenever the presiding judge thinks it necessary he may have an interpreter sworn to translate the evidence into intelligible English. The court additionally pointed out that although the power to appoint an interpreter is seemingly conferred by statute a judge has always had that right independent of any statutory law on the subject. While no case specifically dealing with the right of deaf persons has been found, it is felt that the scope of Ga. Code Ann. 38-1609 and the above cited cases is sufficiently broad to enable a trial judge to appoint an interpreter for any person so afflicted. OPINION 67-332 (Unofficial) September 19, 1967 You express concern regarding the destruction and damage to certain county roads and bridges in Morgan County. 457 You state the damage is caused by contractors hauling extra heavy equipment, rock and soil over these roads during the construction of Highway Project I-20. You then ask certain questions which I will attempt to answer. I. What recourse do the County Commissioners have? Can they expect the contractors to pay the damage or will the State pay the damage? I call your attention to Ga. Code Ann. 68-405, subparagraph (c), which provides as follows: (c) Provided, however: "(i) that the maximum total gross weight shall not exceed 73,280 pounds; "(ii) that on roads constructed under the Rural Roads Authority, this maximum total gross weight shall not exceed 56,000 pounds unless the vehicle is making a pickup or delivery on such roads . . . . "Provided further, however, that any vehicle, on which State and county ad valorem taxes have been paid, of a contractor who has a contract with the State Highway Department for the construction or maintenance of a road or highway may exceed the weight and length limits provided in this section, when used in connection with such contract, without the necessity of obtaining a special permit herein required." In rendering both official and unofficial opinions, I have placed a very strict interpretation on this proviso by ruling that it is applicable only in the immediate vicinity of the project. However, notwithstanding this provision in the law, you may find some relief under the contract which the contractor has with the State Highway Department. The State Highway Department's Standard Specifications, Volume I (May I, 1956), sets forth certain load limit requirements to be observed. These requirements are in Section 7, paragraph 7.0 I (a). It would appear that if the contractor has exceeded the load limits he has violated this item. Since the Standard Specifications are contract documents, stipulations in the above mentioned paragraphs would place the responsibility on the contractor for any damage done to the roads 458 by the contractors' vehicles. Section 7, paragraph 7.13, clearly sets forth the responsibility of the contractor for claims. Under separate cover, I am sending you copies of the Standard Specifications. Your other questions are as follows: 2. Can the County Commissioners legally set a load limit for County Roads? 3. Can the County Commissioners legally set a load limit for County bridges? Ga. Code Ann. 68-405, supra, pertains to any public road or public highway in the State. Therefore, a County cannot set load limits which are inconsistent with this general State law. Hence, part of this problem addresses itself to the General Assembly. I trust that this clearly answers your inquiries. OPINION 67-333 (Unofficial) September 19, 1967 You request information relative to "Good Samaritan Laws" of the State of Georgia. I am pleased to call your attention to the provisions of Ga. Code Ann. 84-930 (Ga. Laws 1962, p. 534) which provides as follows: "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." This 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 allows the party who fails to act to do so with impunity. It also appears to relieve one not at fault but involved in an automobile accident from liability, because he is required under the provisions of Ga. Code 459 Ann. 68-1620 to render aid and provide transportation to a hospital, even though he believes that he is not competent to undertake such responsibility. OPINION 67-334 September 20, 1967 You requested an opinion concerning the propriety of using prison labor to improve real property owned by the Hart County Industrial Building Authority. It is my understanding from your request that no portion of the property to be improved has been sold or leased to any private business concern. The Board of Corrections is authorized to hire out prisoners to public authorities and public corporations. Public authorities and public corporations are authorized by statute to contract for and to receive prisoners. Prisoners may not be hired out to private persons or corporations, nor may any governmental instrumentality utilize prison labor in a business conducted for profit. Ga. Code Ann., 77-318(a). The Hart County Industrial Building Authority was created by a Constitutional Amendment, Ga. Laws 1963, p. 697, which was ratified November 3, 1964. The authority is proclaimed to be an instrumentality of Hart County and a public corporation. Ga. Laws 1963, p. 697. The declared purpose of the authority is to promote the expansion and development of industrial and commercial facilities in Hart County. Ga. Laws 1963, pp. 697,699. The authority is not authorized to operate any facilities constructed by it, but must lease or sell the same. Ga. Laws 1963, pp. 697, 699. It is clear that inmates may be used to improve the public property of the state, counties, public authorities, and public corporations. Ga. Code Ann. 77-318(a). In considering the tax exempt status of certain property owned by the Brunswick Port Authority, the Supreme Court of Georgia held that public property is such property "as is owned by the state, or some political division thereof, and title to which is vested directly in the state, or one of its subordinate political divisions, or in some person holding exclusively for the benefit of the state or a subordinate public corporation." Sigman et a/ v. Brunswick Port Authority et a/, 214 Ga. 332, 335 (1958). The court stated further that "property used for the purpose of public convenience and welfare . . . may properly be classified as public property and therefore exempt from taxation." Sigman et a/ v. Brunswick Port Authority et a/, supra, 335, 336. 460 Although title would appear to be vested in the Hart County Industrial Building Authority, it is also apparent that the authority holds property as a county instrumentality and as a public corporation. It is equally clear that property held and developed by the authority is done so for the public purpose of improving economic conditions in Hart County. Inasmuch as the Constitutional Amendment creating the Hart County Industrial Building Authority proclaims the same to be a_ public corporation and an ins,trumentality of Hart County, and in view of the statutory provision authorizing the Board of Corrections to hire out inmates to public authorities and public corporations, it is my opinion that the Board of Corrections would be authorized to make prison labor available to this public corporation. It must be remembered that the legislature has provided that no governmental instrumentality authorized to utilize prison labor may use such labor in a business conducted for profit. The legislature has further provided that it is a misdemeanor for any person to violate the provisions relating to the hiring out of prisoners. Ga. Code Ann., 77-9910. Inasmuch as I am unapprised of the inner workings of the Hart County Industrial Building Authority, I do not know whether the operations of that authority are conducted for a profit or not. Therefore, I am unable to and do not express any opinion concerning the propriety of the use of prison labor by the authority after the Board of Corrections has made available prison labor to that Authority. OPINION 67-335 September 20, 1967 This is in reply to your letter of September 19, 1967, concerning the regulation of a beverage made of lemonade mixed with beer. I understand that the beverage in question contains approximately 12% beer but has an alcoholic content of less than one-half of one percent by volume. Ga. Code Ann. 58-704 provides that the term " 'malt beverage' shall be defined to mean fermented beverages made whole or in part from malt, or any similar fermented beverage . . . ." The taxation and regulation of malt beverages is not dependent upon any particular alcoholic content and the product in question would be subject to regulation under the provisions of the Malt Beverage Act. Buchanan vs. The State, 77 Ga. App. 435 (1948); Hardu vs. The State, 10 Ga. App. 47 (1911 ); Stoner vs. The State, 5 Ga. App. 716 (1909). 461 OPINION 67-336 September 20, 1967 You asked of this Department, "Whether or not an inmate can be taken to the inmate's private dentist or physician for specialized treatment at the expense of the inmate." Georgia Laws 1956, pp. 161, 171 (Ga. Code Ann. 77-309(e) ), as amended, provides: "It shall be the responsibility of the governmental unit, subdivision or agency having the physical custody of the prisoner to maintain such prisoner, furnishing food, clothing, and any needed medical and hospital attention therefor " It is my opinion that the responsibility for providing medical and dental care rests upon the governmental unit having physical custody of an inmate. There is, however, no statutory prohibition against taking an inmate to his private physician or dentist for specialized treatments at the expense of the inruat.e. I must emphasize that while the Board of Corrections may permit an inmate to receive private specialized treatments, that the inmate has no right to demand that the Board permit such treatments. An inmate receiving private treatments must, of course, remain in custody, and should be under guard. OPINION 67-337 (Unofficial) September 20, 1967 You request our opinion as to whether the Highway Department and the City of Macon have legal grounds for a suit to recover some $70,000.00, which the Department contends was paid to the City's contractor in excess of what was considered to be acceptable for work accomplished for the re-location of the City of Macon water lines on the above numbered project. This office has made a thorough study of the various letters, contracts and federal policy memorandums concerning the above mentioned project which you have furnished to this office. Paragraph 15 of the contract entered into between R. A. Bowen, Inc. and the Board of Water Commissioners of the City of Macon, Georgia in which Wiedeman and Singleton were employed as the engineers for the City of Macon, is set forth as follows: "15. Changes in work: Should the contractor encounter, or the owner discover, during the progress of the work, subsurface or latent conditions at the site materially differing from those shown on the drawings or indicated in the 462 specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the drawings and specifications, the attention of the owner shall be called immediately to such conditions before they are disturbed. The owner shall thereupon promptly investigate the conditions, and if it finds that they do so materially differ, the contract shall be modified, with the written approval of the owner, to provide for any increase or decrease of cost or difference in time resulting from such conditions. No changes in work shall be made without prior written approval by the owner. The contractor shall furnish to the owner, when required, an itemized breakdown of the quantities and prices used in computing the value of any change that might be ordered. In figuring changes, instructions for measurement of quantities set forth in the specifications shall be followed." From the above, it is apparent that the owner, the City of Macon Board of Water Commissioners, had the right to modify the contract to provide for any increase or decrease of cost or difference in time resulting in conditions found on the job. In fact, no changes in the work shall be made without written approval of the owner. In this case it is apparent that the contract was modified with the approval of the City of Macon Board of Water Commissioners, the State Highway Department of Georgia, and the Bureau of Public Roads. This modification was made with no mention of the decrease in the cost for installing the 12-inch and the 20-inch water lines along Riverside Drive to provide for construction of Interstate Highway 75. From the facts presented, it is evident that the prices for installing these lines should have been renegotiated. Paragraph 15 of the contract quoted above gives the owner, the City of Macon Board of Water Commissioners, the power to renegotiate the contract. As Wiedeman and Singleton, Engineers, were handling this contract for the City of Macon, it appears that they, and not the City of Macon, should have been the ones to renegotiate this contract when the problem arose. In failing to renegotiate the price, it is our opinion that the Engineers, Wiedeman and Singleton, did not fulfill their responsibility in this matter. However, since the Engint:::ers were granted permission by the State Highway Department of Georgia and the Bureau of Public Roads to install the water lines in the revised location in lieu of the original location, we feel that the Department has acquiesced in the action ofthe Engineers in this case. Since the Department has 463 acquiesced in this decision, we feel that the State Highway Department of Georgia and the City of Macon Board of Water Commissioners would have no legal grounds upon which to enter suit against R. A. Bowen, Inc., to recover the funds paid to them upon completion of this contract. OPINION 67-338 September 21, 1967 You have requested my official opinion as follows: "Are intangibles owned by the Peace Officers' Association of Georgia exempt from ad valorem taxes imposed by Georgia Law upon intangibles?" The "Peace Officers' Annuity and Benefit Fund" was created by an Act of the General Assembly for the purpose of paying annuities and benefits to the peace officers of the State of Georgia. See Ga. Laws 1950, p. 50, et seq. as amended. The payments have been held to be adjusted compensation for services rendered. Cole v. Foster, 207 Ga. 416, at 420 (1950). The funds of the Association are derived from fines in criminal or quasi-criminal cases. Ga. Code Ann. 78-909. The Association itself is only a trustee of the fund and not a State agency. Op. Att'y Gen. 1950-51, p. 133. The Georgia Constitution, Art. VII, Sec. I, Par. IV, provides that the General Assembly may by law exempt from taxation all public property. See Ga. Code Ann. 92-20 I. Further, the General Assembly has specifically exempted from the intangible tax all public property. Ga. Code Ann. 92-123. Property held and used exclusively for public purposes is entitled to this exemption even though administered by a trust which is not a State agency. The case of Williamson v. Housing Authority of Augusta, 186 Ga. 673, at 691 (1938), stated this proposition as follows: "Property may be public property so as to come within the exemption from taxation although the legal title is not in the State, the county, or a municipality." The Williamson case was cited with approval and applied in Sigman v. Brunswick Port Authority, 214 Ga. 332 (1958). It is my opinion that intangibles belonging to the trust fund administered bv the Peace Officers' Association of Georgia are exempt from ad valorem taxes imposed by Georgia Law upon intangibles. 464 OPINION 67-339 September 22, 1967 You requested an official opinion on whether the Highway Department, which has several outstanding contracts with utility owners, can legally reimburse the utility owners for adjusting their facilities covered by these outstanding contracts. The contracts to which you refer were entered into prior to January 23, 1967, the date of the official opinion of the Attorney General, which states: " ... The State cannot reimburse utilities for adjusting their facilities installed after March 7, 1955, on streets or roads crossed by interstate and limited-access highways." The facilities covered by these contracts were installed across interstate and limited-access highways after March 7, 1955. Construing the official opinion of January 23, 1967, any payment or reimbursement to the utilities under these outstanding contracts for facilities installed across interstate and limited-access highways would be ultra vires and a mere nullity as it would be a gift or gratuity. The Legislature could never have given the Highway Department the authority to make payment under these contracts since, by virute of the Georgia Constitution, Art. VI I, Sec. I, Par. I (Ga. Code Ann., 2-5402), the Legislature has no authority to grant a gift or gratuity in favor of any person, corporation or association. The effort by the Highway Department to reimburse the utilities would constitute an illegal use of the tax funds of this State. Therefore, it is my opinion that the Highway Department cannot legally reimburse the utility owners under these outstanding contracts-that is, contracts which are executory and have not been fully performed for adjusting their facilities covered by these contracts which were installed after March 7, 1955. Since the State Highway Department of Georgia had no legal authority to authorize and contract for these payments to the utilities, the oustanding contracts can be given no force or effect. This opinion purports to deal only with executory contracts which have not been fully performed and should not be applied retroactively to contracts which have been fully performed by both parties. 465 OPINION 67-340 (Unofficial) September 25, 1967 In your inquiry you state that your company provides credit information including information concerning suits on account, notes, mortgage foreclosures, and garnishments which have been filed, in courts of justices of the peace. You further state that a certain justice of the peace has refused you admission to the court records of his office and you wish to know if the above-reported actions are matters of public record open to public inspection. In Ga. Code Ann. 40-270 I, provision is made that: All state, county and municipal records, except those, which by order of a court of this state or by law, are prohibited from being open to inspection by the general public, shall be open for a personal inspection of any citizen of Georgia at a reasonable time and place, and those in charge of such records shall not refuse this privilege to any citizen. Furthermore, by Ga. Code Ann. 89-60 I provision is made that "All books kept by any public officer under the laws of this state shall be subject to the inspection of all citizens bf this state, within office hours, every day except Sunday and holidays." In 76 C.J.S., Records, I, the term "public record" is defined as follows: . . . one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written .memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute public records are, namely, that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it; but the authority of the officer need not be derived from express statutory enactment, and if authorized to make the record, it is not necessary that he should be required to do so . . . . Generally, there is no single test which can be applied to determine what are and what are not public records. All records which the law requires public officers to keep, as such officers, are public records; and whenever a written record of the transactions of a public officer in his office is a convenient and appropriate mode of discharging the duties of the office, and is kept by him as such, it is a public record. (Footnotes omitted). 466 ln Ga. Code Ann. 24-601 (6) it is provided that it is the duty of the justices of the peace "to keep a docket of all causes brought before them, in which must be entered the names of the parties, the returns of the officer, and the entry of the judgment, specifying its amount and the day of its rendition." Additionally, Ga. Code Ann. 24-60 l (7) provides that the justices of the peace are "to carefully file away and label all papers appertaining to any cause, and all fi. fas. and other process return, after being satisfied, entered 'nulla bona,' or having otherwise discharged their functions." The records to which you refer, i. e., suits on account, notes, mortgage foreclosures, and garnishments are "public records" within Ga. Code Ann. 40-270 I since they are required by law to be kept, as well as within Ga. Code Ann. 89-60 I, since they are contained in books kept by a public officer under the laws of Georgia. Therefore, as public records these matters should be open to inspection by citizens of this State at a reasonable time and place. OPINION 67-341 September 25, 1967 You have requested my opinion as to whether pecans are an agricultural product within the contemplation of Ga. Co"de Ann. 13-2013; more particularly, that certain part of the Code section which excepts those loans made upon the security of agricultural, manufactured or industrial products from the general law on limits to bank loans. There are numerous requirements set out by the Code that these products must meet, but your request indicates that I may assume the pecans meet these requirements. Georgia law generally defines agricultural products to include field grown horticultural products. (Ga. Code Ann. 5-642). A pecan nut is normally defined as a one-seeded fruit and therefore would be included as a horticultural product within the meaning of the Georgia law. Webster's New Collegiate Dictionary (lith ed. 1965). Additionally, pecans are specifically included within the definition of agricultural products in several instances of regulation, etc. See, e.g., Ga. Code Ann. 5-614(3). Based on the foregoing reasons, it is my opinion that pecans would be included in the definition of an agricultural product under Ga.CodeAnn. 13-2013. 467 OPINION 67-342 (Unofficial) September 25, 1967 You wrote regarding use of grants for the State to municipalities. Briefly, there are now two laws which provide for grants to the municipalities of this State. The law in existence prior to the last session of the General Assembly of the State of Georgia is found in Ga. Laws 1965, p. 458. This law provides for grants to municipalities for the construction and maintenance of a system of public roads, streets, sidewalks, bridges and appurtenances, and provides for traffic control devices and equipment to control and accommodate the flow of traffic. However, it is significant that this law was amended in 1967 by the Legislature, which amendment is found at Ga. Laws 1967, p. 882. This law, including the amendment thereto and the grant of funds thereunder, shall be referred to hereafter as case number 1. In 1967, the Legislature adopted a new law providing for grants to municipalities, which is found at Ga. Laws 1967, p. 889. This law and the grant of funds thereunder shall be referred to hereafter as case number 2. In the 1967 Appropriations Bill( 48, p. 78), found in Ga. Laws 1967, pp. 41-83, the Legislature appropriated for grants to municipalities, in accordance with the law authorizing such grants for 1967-1968, the sum of $9,317,000.00. This appropriation, as I construe the law, is to be used for grants to municipalities under the old law, or case number I. Also, the 1967 Appropriations Act ( 49, p. 79) appropriated for 1967-1968 the sum of$2,700,000.00, not to be distributed until legislation was enacted providing for the method of distribution. This appropriation, as I construe the law, is to be used for grants to municipalities in accordance with the new law, or case number 2. As I understand from a conversation with the office of the State Treasurer, each of the municipalities receiving grants now receives two checks. One ch-:.:k represents a grant under case number 1, and the second check ~ .-oresents a grant under case number 2. In each case of a municipality in this State receiving grants, the check in the lesser amount represents a grant under case number 2, while the check in the greater amount represents a grant under case number I. The 1967 Amendment to the old law for grants under case number 1 provides in part as follows: ". . . . . such funds are hereby authorized to be granted to certain municipalities as provided for hereinafter and may be 468 used by such municipalities for purchasing, constructing, improving, maintaining and repairing capital outlay items. Any funds granted to municipalities pursuant to the aforesaid provision of the Constitution shall be used only for such purposes provided for in this section." (Emphasis added) It is my interpretation that the term "capital outlay items", as used in this law, would include any expenditure in behalf of municipalities for long-term additions or betterments properly chargeable to a capital asset account. Therefore, in summary, under case number 1, municipalities may expend the funds granted thereunder for the following purposes: 1. For construction and maintenance of a system of public roads, streets, sidewalks, bridges and appurtenances, and to provide for traffic control devices and equipment to control and accommodate the flow of traffic. 2. For the purchase, construction, improvement, maintenance and repair of capital outlay items. The law enacted for the grants to municipalities under case number 2 provides in part as follows: "It is hereby declared to be the purpose and intent of the General Assembly that State funds be made available to the governing bodies of certain incorporated municipalities of this State to be expended for any public purposes, except for the purpose of paying the salaries of elected municipal officers." According to this law, it would seem that the municipalities may use the funds granted for any public purpose other than paying the salaries of elected municipal officers. OPINION 67-343 (Unofficial) September 27, 1967 You ask whether or not the sole Commissioner of Roads and Revenues of Walker County can legally convey real estate owned by Walker County to the State of Georgia. The Commissioner of Roads and Revenues of Walker County has exclusive jurisdiction and control over the following: "In directing, controlling, and caring for all property of the county, according to law." Ga. Laws 1939, pp. 751, 755. The Commissioner has been empowered to and may exercise "all powers heretofore vested in the commissioners or ordinary of said county when sitting for county purposes, and to exercise such other 469 powers as are granted by law, or as may be indispensable to the jurisdiction over county matters or county finances ...." Ga. Laws 1939, pp. 751, 755. Where the General Assembly has given county commissioners exclusive jurisdiction in "directing and controlling all the property of the county as they may deem expedient, according to law," that board has exclusive control over property belonging to the county. County of Early v. Chipstead, !56 Ga. 445 (1923). County officers who have control of county affairs may, by proper resolution recorded in their minutes, "direct the disposal of and make and execute good and sufficient title to lands belonging to the county which are not necessary for public use." Head v. Lee, 203 Ga. 191, 201 (1947); Ga. Code Ann., 91-602. Georgia Code Ann., 91-804 provides that public property may be sold when it has become unserviceable. A county commissioner cannot sell county property unless it is unserviceable. Davis v. Logan, 206 Ga. 524 (1950); Killian v. Cherokee County, 169 Ga. 313 (1929). Public property becomes unserviceable within the meaning of Ga. Code Ann., 91-804 when it can no longer be beneficially or advantageously used under all the attending circumstances. Davis v. Logan, supra; Trappnefl v. Candler County, 146 Ga. 617 (1917); Malcolm v. Fulton County, 209 Ga. 392 (1952). While Ga. Code Ann., 91-804.1 requires that county real estate be sold at public outcry, after advertisement, these provisions were made inapplicable to conveyances to any other body politic. The control of county property having been vested by the legislature in the Commissioner of Roads and Revenues of Walker County, it is my opinion that the Commissioner may lawfully convey real estate owned by Walker County to the State of Georgia. OPINION 67-344 September 27, 1967 You asked for my official opinion regarding the interpretation of the word "during" as used in Ga. Laws 1967, p. 593. Said law revised the requisites for the training of practical nurses by hospitals by requiring hospitals providing such training to include in their course a minimum of 600 hours classwork and 800 hours practical experience during a period of twelve months. You have asked whether a person having completed such a course in a period of nine months is eligible to take the examination for licensed practical nurses or whether such person must allow twelve months to elapse before becoming eligible to take such examination. 470 "During" may be construed to mean either "throughout the duration of' or "at a point in the course of." Webster's Seventh New Collegiate Dictionary, p. 258. See also, Taylor v. State, 124 Ga. 798, 800 (1906). Accordingly, it is necessary to ascertain the intent of the General Assembly by keeping in view the old law, the evil and the remedy. Ga. Code Ann. 102-103 (9). Additionally, it has been held that construction of a statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465, 470 (1928). Clearly, it is the hours of study and experience which are of importance and not the time interval in which such hours are achieved. An hour of practical experience classroom study is the same whether it be had in the ninth month or the twelfth month. Accordingly, it is my official opinion that applicants having achieved the requisite hours in a period of nine months are eligible to take the examination for licensed practical nurses. OPINION 67-345 September 27, 1967 This refers to your letter of September 19, 1967, to which you attach certain lease agreements between the State Department of Education and a California corporation. You point out that the leases are for terms of lO years with each lease containing, however, a clause which would permit the State Board to terminate the contract: (l) "At any time by buying all of the tubes covered under the lease at prices equal to 20% of their 'insured value' as shown in paragraph l [of the agreement], or the 'insured value' of the tubes less 80% of the rentals paid for the use of the specific tubes currently in possession of the State, whichever is greater," or (2) "At any time after one (l) year, by giving EI MAC ninety (90) days advance notice, and by paying El MAC the cost of returning the tube to new condition, such cost to be limited consistently with paragraph 7 [of the agreement]...." You indicate that you desire to know whether these provisions have the effect of legalizing the contract notwithstanding its facial term of lO years. You also ask whether the person executing the leases for the State Board of Education is authorized to do so. My opinion and the reasons therefor are as follows: OPINION (I) The quoted provisions pertaining to the right of the State Board of Education to terminate the agreement would appear to 471 preclude the possibility of the agreement being declared null and void because of its facial term of 10 years. (2) For the reasons hereinafter stated, the question as to whether the individual who has executed the leases on behalf of the State Board of Education is authorized to do so, presents a factual rather than legal question and consequently is not susceptible of a legal answer. DISCUSSION I. The frequently mentioned rule that State Departments and agencies cannot ordinarili enter into contracts for periods longer than a single year stems not from a prohibition of contracts for any longer period of time per se, but from the constitutional restrictions, limitations and prohibitions respecting the incurrence of a "debt." See, e.g. Art. VII, Sec. Ill, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5601). In City Council of Dawson v. Dawson Water Works Co., 106 Ga. 696, 71112 (1899), the term "debt," as employed in the debt limitation provisions of the Constitution, was defined as: "a liability which is undertaken and which must be discharged at some time in the future, but which is not to be undertaken by a tax levied within the year in which the liability is undertaken." The prohibition, in other words, is directed towards the incurrence of a fiscal obligation which extends beyond the year in which it is undertaken. Obviously there can be no such obligation where the contract is one which the public body can terminate either at will or upon 90 days advance notice. It is also significant that the Dawson case also declares that even a clear violation of the constitutional prohibition (e.g. a contract for a plural number of years which cannot be terminated during the initial year) is not a complete nullity. Such illegal contract continues to be operative for the initial year and from year to year thereafter so long as neither party renounces or repudiates it. Id. at 713-14. In light of the foregoing, I do not believe that the contracts under consideration are illegal on the ground that they create a constitutionally prohibited "debt" (i.e. a fiscal obligation on the part of the State Board of Education which at the time it was undertaken extended beyond the year of its execution). 2. Your second question, which pertains to the physical execution of contracts for and on behalf of the State Board of Education, is not susceptible of a legal answer. To explain, I am sure that you are already quite familiar with the fact that it is the State Board of 472 Education itself, and not any individual, which is legally authorized to enter into contracts for the Board and/ or the State Department of Education. The usual manner in which the State Board would assent to a contract, of course, is by an appropriate resolution. Ordinarily such resolution would itself provide for a named agent or officer to physically execute the contract on its behalf. Moreover, the Board has broad discretion as to which officer or agent it will authorize to execute any particular contract. Hence, your question as to whether the signatures on the instant lease contracts are "authorized" depends upon the factual determination of whether or not they were ordered or allowed to execute the same by the Board. This must be determined by examination of the minutes of the Board of Education. It might be appropriate to observe, of course, that in most instances it is the Chairman of the State Board of Education who signs contracts on the Board's behalf, with his signature customarily being attested to by the State School Superintendent. OPINION 67-346 (Unofficial) September 27, 1967 You wrote requesting an opinion as to whether the chairman of the Commissioners of Roads and Revenues for White County has the authority to veto action taken by a majority of the commissioners toward payment of a county obligation. Ga. Laws 1933, p. 762, sets out the matters over which the Commission of Roads and Revenues has exclusive jurisdiction. Specificially included in section 15, p. 763, is the Commission's authority to pay out money. It is true that section 7, p. 761, makes it the duty of the chairman to approve the acts of the board; however, this is only the means by which the action of the board is promulgated. Since the authority to act was conferred upon the Commission as a body, how the board acts is left to the majority. Where authority is giv!!n jointly to a number of persons, the majority of such persons may act for the body. See Ga. Code Ann. 102-102(5) and Austin- Western Road Machinery Co. v. Fayette County, Ga., 99 F. 2d 565 (5th Cir. 1938). It is my opinion that the chairman does not have the authority to veto action taken by the majority. This view is in accord with Ga. Code Ann. 23-9 which sets out the provisions for the county manager form of county government. 473 OPINION 67-347 (Unofficial) September 27, 1967 You requested my unofficial opinion on whether or not there are any legal objections to the use in the third and fourth weeks of October of the originally selected members of the grand jury which was assembled on Aug!lst 7, 1967, for the Jackson Superior Court for the August term but which was never sworn in due to an announcement of the murder of the then Solicitor General of the Piedmont Circuit, Floyd Hoard, and at which time Judge Dunahoo recessed the court until further notice. It is this office's understanding of the factual situation surrounding this question that Jackson County Superior Court has two terms of court. These terms are designated as the August term and February term. On August 7, 1967, the Jackson County Grand Jury was assembled to begin the August term. After the announcement of Solicitor General Hoard's murder, the court simply recessed until further notice. From the above facts it can be seen that although the grand jury had been selected for the August term, it had not be_en sworn in Also, since the court did not formally adjourn but simply recessed, then the planned sessions on the third and fourth weeks of October will be merely a reconvening of the grand jury for the August term. Thus, this procedure will not violate the prohibitions of Ga. Code Ann. 59-114 which provides that any juror who has served as a grand juror at any session of the Superior Court of the preceding term cannot serve as a grand juror at the next succeeding term of the said Superior Court. Furthermore, the provisions of Ga. Code Ann. 59-119 concerning the effect of a failure of a court are applicable in answering there hereinabove set forth question. This section provides that, "Whenever there shall be a failure of the Superior Court, in consequence of the nonattendance of the judge or other cause, the jurors summoned for such court shall stand over to the next succeeding term in the same manner as suitors and witnesses do." (Emphasis added.) From the above-quoted code section it can be seen that if there is a failure of the Superior Court to convene at a set term, then those 474 grand jurors summoned for such term may serve at the next succeeding term. It is to be noted that the failure of the Superior Court to convene can be for other causes. One such cause would be the absence of the Solicitor General who is a necessary party for the presentment of evidence to the grand jury. Thus, although the factual situation under this question does not completely fit the wording of Ga. Code Ann. 59-I 19 in that in this case the grand jury has not been held over until the next succeeding term but was merely recessed until further notice, yet, the logic of this code section is applicable in answering this question. Thus, if there is a failure of the Superior Court to convene for other causes and the grand jurors for that term of court shall be allowed to stand over to the next succeeding term, then there is no reason why the grand jury of the Superior Court cannot be recessed for good cause and the jurors resummoned and the grand jury reconvened at some subsequent time. Thus, it is my unofficial opinion that the Jackson County Grand Jury as originally selected and assembled on August 7, 1967, may be notified to appear in October and that an entirely new grand jury need not be selected and impaneled as if they were starting over for the August term. OPINION 67-348 September n, 1967 You requested my official opinion as follows: "We would appreciate it if you would advise if any type gift or donation received by the Georgia Prison Industries Administration would be a tax deductible item by the donor, both Federal and State wise." The "Georgia Prison Industries Administration" is a body corporate and politic, an instrumentality and corporation of the State of Georgia. Ga. Laws 1960, p. 880. The Administration is authorized to receive gifts and grants to be used for its corporate purposes. The purpose of the Administration is " . . . to provide training jaci/ities for the prerelease, rehabilitation, and education of prisoners confined in the Georgia Penal System. " (Emphasis added) Ga. Laws 1960, p. 880, 882. 475 In the event the Administration accumulates a surplus, the surplus goes to the State Treasury. Ga. Code Ann. 92-3109 (g) as amended provides a deduction for contributions or gifts made to corporations, associations, foundations, or trusts ". . . created solely and exclusively for religious, charitable, scientific, or educational purposes .... no part of the net earnings of which inures to the benefit of any private stockholder or individual, ...." (Emphasis added.) This deduction may not exceed, in the case of individuals, fifteen percent of the taxpayer's gross income less business expenses, and in the case of corporations may not exceed five percent for the corporation's net taxable income. In view of the nature of the Administration and the educational functions it provides, I conclude that bona fide contributions or gifts to the Administration would qualify for the deduction found in Ga. Code Ann. 92-3109 (g), as amended. Section 170 (C) (2) of the Internal Revenue Code of 1954 provides a similar deduction under the Federal Income Tax Law. Subsection (C) ( 1) of Section 170 of the Internal Revenue Code also provides a deduction for contributions or gifts to a State or a "political subdivision" of a state. In construing this Section, the Federal courts have given a broad meaning to the term "political subdivision" of a state. SeeShamberg Estate, 144 F.2d 998. I conclude that bona fide contributions or gifts made to the Administration would be tax deductible under the Federal Income Tax Law under Section 170 of the Internal Revenue Code of 1954, as amended, as either an educational contribution or as a contribution to a "political subdivision" of the State. My opinion, of course, concerning the Federal tax consequences is not binding in any sense on the Internal Revenue Service. A ruling on the Federal tax consequences can be secured by directing an inquiry to the Commissioner of Internal Revenue, Washington, D. C. 20224. Attention: Tax Ruling~ Educational Organization. OPINION 67-349 September 29, 1967 You requested an official opmwn on the legality of sales of products manufactured or produced by the Georgia Prison 476 Industries Administration to government contractors only which are located outside the State of Georgia. In Ga. Code Ann. Ch. 77-9 which establishes the Georgia Prison Industries Administration and sets forth its powers, under Ga. Code Ann. 77-904 the ~eneral l?owers of the administration are enumerated. Subsection (d) of this section provides that, "The Administration shall have the same powers and authority as now possessed by the State Board of Corrections in connection with the manufacture and sale of products...." Ga. Code Ann. Ch. 77-3 deals with the powers of the State Board of Corrections regarding the control and the disposition of prisoners. Ga. Code Ann. 77-318 specifically sets forth the methods for the sale of goods produced by inmates of prisons or public works camps. Subsection (b) of this section provides: "No goods, wares or merchandise, manufactured, produced, or mined wholly or in part, by the inmates of any prison or public works camp operated under the jurisdiction of the State Board of Corrections, shall be sold in this State to any private person, firm, association or corporation, except that nothing herein shall be construed to forbid the sale of such goods or merchandise to other political subdivisions, public authorities, municipalities or agencies of the State or local governments, to be consumed by them, or to agencies of the State to be in turn sold by such agency to the public in the performance of such agency's duties as required by law. This does not prohibit the sales of unprocessed agricultural products produced on State property." It is to be noted that under the provisions of subsection (b), supra, only private persons, firms, associations or corporations are prohibited from buying prison produced merchandise. Also, it is to be noted that these prohibitions apply only to sales made within the State. Furthermore, subsection (b) makes an exception in the case of sales to political subdivisions, public authorities, municipalities or agencies of the State or local governments. There are no expressed prohibitions in these code sections against sales to buyers located outside the State of Georgia. Furthermore, even a prohibition against sales to private persons, firms or corporations outside of the State cannot be gleaned from the wording of this statute. 477 Although the legislative intent of these provisions is somewhat unclear, it is surmised that the purpose of these prohibitions was to prevent any competition by the sale of prison made or produced goods with those produced by private industry and private businesses within the State of Georgia. In interpreting our statutes Ga. Code Ann. 102-102, subsection 9, states that one should "look diligently for the intention of the general assembly, keeping in view at all times, the old law, the evil, and the remedy . . . ." However, since the legislative intent is unclear we must also resort to the maxim "expressio unius est, exclusio alterius," the expressed mention of one thing implies the exclusion of another. See Bailey v. Lumkin, I Ga. 392, 403 (1846). Thus, due to the fact that subsection (b) prohibits only sales within the State of Georgia to private persons, firms, associations, or corporations then it is to be concluded that this expressed prohibition is to be construed as to the extent of the legislature's sanctions on sales of prison made or produced products and, therefore, that any sales made beyond the State are excluded from these prohibitions. Hence, based on the above interpretations it is my official opinion that there are no prohibitions in existence under the statutes of the State restricting the sales of products manufactured or produced by the Georgia Prison Industries Administration to government contractors outside the State of Georgia. OPINION 67-350 September 29, 1967 You inquired as to the person having the duty in Richmond County to invest county funds which are derived from the issuance of county bonds. In order to answer your question, I am assuming that you are referring to funds which are the proceeds of bonds issued by Richmond County and not to funds collected in the form of taxes from residents of Richmond County for the purpose of paying the bonded indebtedness of the County. Your attention is called to Ga. Code Ann., 87-701a, which provides as follows: "Authority to invest and reinvest; lawful investments; discretion as to price on purchase and sale.-The proceeds of 478 any bonds issued by any county, municipality, school district or other political subdivision of this State, or any portion thereof, may from time to time be invested and reinvested by the governing authorities of such county, municipality, school district or political subdivision in the bonds of such county, municipality, school district or other political subdivision, or in the bonds or obligations of the State of Georgia, or of other counties, municipalities and political subdivisions of Georgia, or in the bonds or other obligations of the United States or of subsidiary corporations of the Federal Government fully guaranteed by such Government, and no other. Such governing authorities so authorized to invest such funds are authorized, in their discretion, to purchase such securities as an investment at either a premium or a discount and to sell such securities at such time and for such price as such governing authorities may deem advisable. (Acts 1947, p. 1173.)" As you will note from the above section, the authority for investing the proceeds from bonds " . . . issued by any county, municipality, school district or other political subdivision, of this state, or any portion thereof, . . ." is vested in the " . . . governing authorities of such county, municipality, school district, or political subdivision ...." Thus, it becomes necessary to determine the party or parties coming within the definition of "governing authority" as to a particular issuing entity. Since your letter does not indicate the nature of the county bonds to which you are referring, a general answer to your question is all that can be given. If the bonds are general county bonds issued under the authority of the Board of Conmissioners of Roads and Revenues, said Board, as the governing authority of the issuer, would be the party authorized to invest the proceeds. If the bonds were issued by some other entity of the county, then the governing authority of that entity would have the authority to invest the proceeds of the bonds which it issued. OPINION 67-351 (Unofficial) September 29, 1967 You requested an opinion as to whether a Justice of the Peace Court is a court of record, and if so, is the new Georgia Civil Practice Act applicable. 479 Ga. Code Ann. 81A-10 I makes the Civil Practice Act applicable only to courts of record. As stated by the Georgia Supreme Court in DeKalb County v. Deason, 121 Ga. 237 (1965), Ormond v. Ball, !20 Ga. 916, 922 (1904), and Plunkett v. Hamilton, 136 Ga. 72, 75 (1911), a Justice's Court is not a court of record. It is, therefore, my opinion that a Justice Court is not subject to the Civil Practice Act. OPINION 67-352 (Unofficial) October 2, 1967 This is in reply to your letter of September II, 1967, enclosing correspondence from Mr. E. A. Logan, Field Division Engineer, Jesup, Georgia, regarding the drainage clause in our right-of-way deed. In this letter he states: "This question has been raised on numerous occasions by property owners, especially those owners or corporations which employ a legal staff. I have been successful in most instances by explaining that a contractor is liable for any damages he causes to adjoining property during construction through negligence or by making the standard modification which is acceptable only on those deeds granted gratuitously. l am, in most cases, asked why we insist on retention of this clause in the deed when we do not acquire these rights through condemnation. "I would like to request that you secure an opinion from the Attorney General which outlines the rights of the owner with regard to actual damages created through construction as affected by this clause. I feel that an official opinion from the Attorney General, no matter which party it should favor, would be beneficial when this question arises. It would certainly prevent our representatives from giving the owner an uninformed or incorrect interpretation." You then restate the question as follows: "Do we want to continue to have this clause in our deed'? It's a matter of has the drainage clause any value?" As I understand the situation, the language contained in the rightof-way deed to which you have reference is as follows: 480 "AND for the same consideration, I do further grant the right to all necessary drainage in the construction and maintenance of said road constructed over the said right-of-way and on my lands adjacent thereto, and also release said County and State Highway Department from any claim of damage arising on account of construction of said roads or fills and embankments, ditches or culverts or bridges, on account of back water, changing of courses of streams, or in any other manner." It has been my experience that this language has created considerable problems. I know of many instances where the Highway Department was unable to acquire property by deed because of this language. In other words, many property owners are advised by their private attorneys not to sign such a deed with this language contained therein. I agree, because the language is very ambiguous and, moreover, you are asking the landowner to convey more rights by deed than it is legally possible to obtain by condemnation. A condemnation lawsuit does not release the Highway Department nor the contractor; for example, for negligent construction. See McArthur v. State Highway Department, 85 Ga. App. 500 (1952); and Central Georgia Power Company v. Mays, 137 Ga. 120 (3) (1911). I will admit that there is a minimal value to this language because, if a landowner does sign same with such a clause contained therein, it has been construed as a release of all claims of liability on account of construction and maintenance of a road project. See Wheeler v. Jones County, 10 I Ga. App. 234 (1960). However, the disadvantages far outweigh the advantages because the form deed with the language contained therein definitely results in more litigation, whereas without the clause I doubt if the Highway Department would be faced with a large number of lawsuits. As a matter of fact, I would estimate that we would have very few additional suits if the deeds did not contain this language. Therefore, I recommend that the forms be revised and that this clause be deleted. 481 OPINION 67-353 October 3, 1967 You refer to this office a letter to you from the Honorable W. B. Steis, Representative, IOOth District, of September 26, 1967. In your letter you asked my opinion as to whether a city which incorporated subsequent to the 1960 Census may qualify under the provisions of the subject law to receive a grant. Upon review of this law and its amendments, it appears that the important provisions for consideration in answering your question are found in Section 3 of the original legislation (Ga. Laws 1965, pp. 458, 460), which provides a definition for "Incorporated Municipality" as follows: "Incorporated Municipality as used in this Act shall mean incorporated municipality, whose population shall be based on the current United States decennial Census, the governing body of