Opinions of the Attorney General 1968

OPINIONS of
THE ATTORNEY GENERAL
1968 ARTHUR K. BOLTON
ATTORNEY GENERAL
ATLANTA THE HARRISON COMPANY
PUBLISHERS

TABLE OF CONTENTS

OPINIONS ................. . TABLE OF CONSTITUTIONAL PROVISIONS
CITED . . . . . . . . . . . . . . . . . . . TABLE OF GEORGIA LAWS CITED . . . . TABLE OF GEORGIA CODE ANNOTATED
SECTIONS CITED
INDEX . . . . . . . . . . . . . . . . . . . . . . . .

. 763 . 765
. 779 . . . . 801

ATTOR:\IEYS GE:\IERAL OF GEORGIA

HENRY P. FARRER . . . . . . . . .

. 1868-18n

N.J. HAMMOND .......... .

. 1872-18 7 7

ROBERT N. ELY . . . . . . . . . . . . . . . . . . . . . . 1877-1880

CLIFFORD L. ANDERSON . . . . . . . . . . . . . . . . 1880-1890

GEORGE N. LESTER . . . . . . . . . . . . . . . . . . . 1890-1891

W. A. LITTLE . . . . . . . . . . . . . . . . . . : . . . . . 1891-1892

J. M. TERRELL . .

.1892-1902

BOYKI :"J WRIGHT

.1902-1902

JOHN C. HART . . . . . . . . . . . . . . . . . . . . . . 1902-1910

HEWLETT A. HALL .

1910-1911

THOMAS S. FELDER

1911-1914

\VARR EN 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. AR:\IALL . . . . . . . . . . . . . . . . . . . . . 1939-1943

GRADY HEAD . . . . . . . . . . . . . . . . . . . . . . . 1943-1945

EUGENE COOK . . . . . . . . . . . . . . . . . . . . . . 1945-1965

ARTHUR K. BOLTON . . . .

1965-

Ill

ARTHUR K. BOLTON The Attorney General

LEGAL STAFF OF DEPARTMENT OF LAW DURING CALENDAR YEAR 1968

NAME

TITLE

Bolton, Arthur K. Tidwell, G. Ernest Hill, Harold N., Jr. Blackmon, John A. Bryan, W. Wheeler Castellani, Robert J. Chambers, Richard L. Childers, William R., Jr. Cocalis, Alexander Coleman, J. Robert Crumbley, R. Alex, Jr. Evans, Alfred L., Jr. Feldman, Joel C. Gordon, Marion 0. Harper, William L. Hartman, Don Lee Hinchey, John McDonald, Louis F. Michael, H. Perry Nardone, A. Joseph, Jr. Perry, James Lee Richardson, Curtis R. Robins, Mathew Ruskaup, Larry D. Sherrell, Robert E. Sims, Marshall R. Sligh, John A., Jr. Stanton, Courtney W. Talley James B. Thompson, Melvin E., Jr.
Williams, Joel C., Jr.

Attorney General Executive Assistant Attorney General* Executive Assistant Attorney General** Assistant Attorney General Assistant Attorney General Assistant Attorney General 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 Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Assistant Attorney General Deputy Assistant Attorney General Deputy Assistant Attorney General Assistant Attorney General
Deputy Assistant Attorney General

* Appointed Judge, Civil Court October 8, 1968.
** Appointed Executive Assistant Attorney General October 8,
1968.

OPINIONS of
THE ATTORNEY GENERAL 1968

OPINION 68-1 (Unofficial)

January 2, 1968

This is in reply to your letter concerning the Act requiring the payment of ad valorem taxes on motor vehicles prior to registration, where the tax jurisdiction imposed no ad valorem taxes for the previous year.

The Act in question (Ga. Laws 1966, p. 517; Ga. Code Ann. 92-1501, et. seq.) imposes an ad valorem tax on motor vehicles, the levy being made by the Act as passed by the General Assembly. Local tax authorities are not given the authority to raise or lower the rate of levy made by the Act nor is their concurrence necessary. (Ga. Laws 1966, p. 517, II; Ga. Code Ann. 92-1511). See Casey Development Corp. v. Montgomery County, 212 Md. 138, 129 A.2d 63 (1957).

The Act in question imposes, in my opinion, no tax on motor vehicles for a municipality for 1968 where the municipality in question made no ad valorem tax levy for the year 1967 on other property. The Act clearly states:
"92-151 I. Tax rate.-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. Laws 1966, p. 517; Ga. CodeAnn. 92-1511.)

OPINION 68-2 (Unofficial)

January 2, 1968

You requested our advice concerning the force account agreement between the State Highway Department of Georgia and Georgia Power Company dated February 24, 1964. You state that the agreement was prepared and executed without requiring the power company to give a credit of extending the service life of certain facilities which were located for Georgia Project" F-0263(12) (Construction Ware County). You specifically asked our opinion as to whether the Department should (a) require the Georgia Power Company to give a credit for extended service life in this case, or (b) in the event the Department cannot obtain sufficient data to make a determination of extended service life

2
credits, should the Department refuse to reimburse the power company for relocating the facilities in question.
As stated in your letter, the power company, in executing the agreement, stated that they did not believe that the extended service life credit was applicable in this case. In answer to your specific questions, I would call your attention to section 6 of the above-mentioned force account agreement which reads as follows:
"(6) The Company hereby certifies that the estimate supporting this agreement complies with the requirements of Paragraph 7f of the aforesaid PPM 30-4, insofar as the adjustment of the facilities included therein involve credit for extended service life, and further that the final billing hereunder will include the required credits to comply therewith." (Emphasis added)
According to the above-quoted provision of the force account agreement and the statements made by Georgia Power Company, it appears that the power company fully intended to include in the estimates submitted along with the force account agreement all credits for extended service life. Inasmuch as this agreement has been fully signed, executed and approved by all parties concerned, it is the opinion of this office that the State Highway Department of Georgia can not require Georgia Power Company, in this instance, to give a credit for extended service life. In view of the answer to section (a) of your question, there is no need, at this time, to answer section (b) of your question.

OPINION 68-3

January 2, 1968

You have requested my opinion as to whether tax anticipation notes issued by the counties and cities of Georgia would be proper collateral for State deposits.
The law provides that the State Treasurer may only deposit State funds in depositories under certain conditions, one of which is that the depository must either give a proper surety bond or in lieu of such surety bond:

" ... The State depository may deposit with the State Treasurer bonds of the United States or of this State, or bonds of the counties or municipalities of this State, or

3
bonds of any public Authority created by law if the statute creating such Authority provides that the bonds of such Authority may be used for this purpose, satisfactory to the State Treasurer, which have been duly validated as provided by law, and as to which there has been no default in payment either of principal or interest." (Ga. Code Ann. 100-108.)
The tax anticipation notes described by you, authorized to be issued by Georgia Constitution, Art. VII, Sec. VII, Par. IV; codified as Ga. Code Ann. 2-6004, are tax anticipation notes used to cover temporary loans for expenses to Georgia's cities and counties during the current year.
It is my opinion that these tax anticipation notes would not be proper collateral for State deposits. The law as noted above is quite clear as to what type of securities may be accepted and tax anticipation notes are not included in the law as proper collateral.
If a sufficient number of people desire these tax anticipation notes to qualify, I suggest that the matter be taken up with the General Assembly since the General Assembly in the past has declared certain types of investments, not eligible under Ga. Code Ann. 100-108, to be eligible to secure State deposits in depositories. See, e.g., Ga. Laws 1939, pp. 399, 403, which declares that Western & Atlantic Railroad warrants would be such eligible securities.

OPI~IO~ 68-4 (Unofficial)

January 4, 1968

You have pointed out the following facts, among others: The Fulton County Board of Elections has voted to distribute to the entire electorate sample ballots prior to the next general election. You estimate that it will cost approximately $15,000 to prepare and distribute the sample ballots.

You have requested an opinion as to whether Ga. Code Ann. 34-1913, which proscribes the manufacture and possession of any counterfeit of an official ballot or ballot card, or any other provision in the Georgia law, would prohibit the Board's distribution of sample ballots.
Aside from the question riased by Ga. Code Ann. 34-1913,

4
there is even the more troublesome problem raised by your request as to whether an election board has the authority to expend ptJblic funds to prepare and distribute sample ballots to the electorate. Certainly, the powers and duties set forth in sections 8 and 9 of the Act creating the Board (Ga. Laws 1967, pp. 3211, 3213-3214) do not, in and of themselves, confer such authority. In essence, those sections provide that the board succeeds to the powers and duties of the ordinary with respect to elections.
Thus we turn to the Election Code to ascertain whether the ordinary would have such authority. A review of Ga. Code Ann. 34-401 and 34-1227 indicates to me that the ordinary does not have the authority needed for carrying out the proposed distribution. Even if such authority were contained in the Election Code, it is extremely doubtful wheth~r public funds could be used. See Georgia Constitution, Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702).

OPI~IO~ 68-5

January 8, 1968

You ask whether the Regents may spend State funds to contract with a collection agency which will assume responsibility for the collection of national defense student loans. It is my understanding that the collection agency has a program for the collection of such loans which has been approved by the United States Department of Health, Education and Welfare.
By Opinion 67-89 I advised you that State funds could not be
used to obtain Federal matching funds for the national defense educational assistance program. I believe that the reasoning expressed therein as to obtaining the funds initially applies also to contracting for the collection of the loans, and that the Regents would be precluded from expending State funds for such purposes. This does not, of course, prevent the institutions involved from expending other funds, such as unrestricted trust funds, to obtain repayment of the loans through a collection agency.
Turning to the form of the agreement, I find that the proposed contract provides that the institutions shall indemnify and hold the collection agency harmless from all liability incurred as a result of such collections. The Regents, as a department of State government, has sovereign immunity from tort liability which can

5
only be waived by the General Assembly. Accordingly, it would be beyond the authority of any institution under the control of the Regents to enter into any agreement containing such a hold harmless clause.
The remainder of the agreement appears sufficient as to legal form and is one which the Regents may execute should it desire to do so.

OPI~IO~ 68-6 (Unofficial)

January 9, 1968

This .is in reply to your letter concerning the certification of petitions for taxing and controlling the sale of alcoholic beverages in your county and the Ordinary's duty with respect to such a petition.

When an Ordinary is presented with a petition calling for an election concerning the sale of alcoholic beverages in the county, it is the duty of the OrdinarY to determine whether the petition contains the signatures of the required number of voters. Sanders 1. Mason, 197 Ga. 522 ( 1944). The Ordinary's duty in this respect is the same whether or not the petition contains a certification as
* to the number of qualified voters signing such petition. (Ga. Code
Ann., 58-1003) The Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. Laws 1937-38, Ex. Sess., p. 103; Ga. Code Ann., Ch. 58-10) contains no requirement for a certification of petitions.

OPI~IO~ 68-7

January I0, 1968

This is in reply to your letter asking whether use of the word "roadrunner" as a cognomen for Dalton Junior College would in fringe upon the copyright of Warner Brothers-Seven Arts Corporation to the cartoon character "Road Runner." I understand that the only similarity will be in the name and there will be no insignia or other device which will bear any relationship whatsoever to the cartoon character.
The copyright laws do. not extend to names. Gray v. Eski111o Pie Corp., 244 F. Supp. 785 (D.C. Dal., 1965). Accordingly, I

6
believe the school will experience no difficulty in adopting the name "roadrunner." The copyright laws do apply, however, to illustrations in copyrighted material. Consequently, if the school plans to adopt the "roadrunner" as a school insignia, care should be taken not to copy a copyrighted illustration without permission.

OPINION 68-8

January I0, 1968

You have requested my opinion on whether a proposed clothing purchase policy of a Georgia Youth Development Center is possible under the present law regulating the Supervisor of Purchases. The proposed plan is to allow the students at the Youth Development Center to engage in selective buying by arranging with the Supervisor of Purchases to budget a specified total from the Center's budget to be spent for clothes and shoes per quarter. The clothes and shoes would be purchased by the students, under proper supervision, at one or more of the local department stores designated in advance by the Supervisor of Purchases. The students would, in this manner, be allowed to select the styles, colors and sizes of the clothes and shoes that they would wear.
Ga. Laws 1939, pp. 160, 175 (Ga. Code Ann. 40-1937) provides:

"It shall be unlawful for any person to knowingly sell or deliver any article, material, merchandise, ware, commodity or other thing of value to any person, directly or indirectly, by or through the Supervisor of Purchases or by or through any department, agency, board or bureau of the State jar the individual and personal ownership of such person or other person or persons, except that property of the State may be sold or otherwise disposed of in accordance with the laws governing the sale or other disposition of State property." (Emphasis added.)

Any violation of this law is a misdemeanor and punishable as such. Ga. Code Ann. 40-9904.

It is my understanding that the clothing and shoes purchased by each student would become his personal orooertv which he

7
should keep when he is discharged from the Center. As a matter of fact, the law requires the Center to insure that each student released by the Center has suitable clothing, in addition to transportation to his home and such an amount of money as authorized by the rules and regulations. Ga. Laws 1963, pp. 81, 105; codified as Ga. Code Ann. 99-2\J(i).
There is an apparent conflict between the purchasing law which forbids the purchase of goods through the Supervisor of Purchases for the individual and personal ownership of any person and the law establishing the Youth Development Cente.r which requires that the Center insure that each student it releases has suitable clothing. Since the law establishing the Youth Development Center is the more recent law, I must assume that the General Assembly intended to exempt the purchase of "suitable clothing" by the Center from the jurisdiction of the Supervisor of Purchases. To construe the law otherwise would require that you commit a misdemeanor each time you purchase clothing for the students since you would know at the time of such purchase that it is for individual and personal ownership.
Therefore, it is my opinion that the proposed clothing purchase policy described above cannot be conducted by or through the Office of the Supervisor of Purchases.

OPI:'IIIO~ 68-9 (Unofficial)

January 12, 1968

You requested information in regard to a Notice of Levy [by the United States Internal Revenue Service], Form 688-A, which Brunswick Junior College has received against an employee, Rufus Cox.
In particular, you requested information concerning whether or not such a Notice of Levy is valid against the State of Georgia in view of Ga. Code Ann. 46-805 providing that an assent is necessary prior to a garnishment judgment against a governmental entity.
By 633l(a) of the Internal Revenue Code of 1954, authority is given as follows for the collection of Federal taxes:
If any person liable to pay any tax neglects or refuses to pay

8
the same within 10 days after notice and demand, it shall be lawful for the Secretary or his delegate to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax . . . .
Furthermore, Section (b) of the above-quoted section provides that "The term 'levy' as used in this title includes the power of distraint and seizure by any rrieans. A levy shall extend only to property possessed and obligations existing at the time thereof
"
* Provision is also made in the Federal Tax Regulations, 301.
633 1-l (a)(4)(ii), as follows:
State and municipal employees. Accrued salaries, wages, or other compensation of any officer, employee, or elected or appointed official of a State or Territory, or of any agency, instrumentality, or political subdivision thereof, are also subject to levy to enforce collection of any Federal tax.
In Sims v. United States, 359 U.S. 108, 79 S. Ct. 641, 3 L. Ed. 2d 667 (1959), the Supreme Court of the United States held that 6331 of the 1954 Internal Revenue Code authorized a levy upon the accrued salaries of employees of the State of West Virginia.
Additionally, Sims, supra, held that under 6332 the State Auditor of West Virginia, upon whom the levies were served, was personally liable to the United States Government for refusing to honor the levies since he was, by West Virginia statute, " . . . empowered ... completely to control the disposition of that fund" from which the State employee's salary was paid.
Therefore, it is my unofficial opinion that as Comptroller of the Brunswick Junior College, you are required by the above-stated Federal statutes to withhold from the salary of Rufus Cox the sum of $94.67, or whatever lesser sum you may be, at the present time, indebted to said employee.
Upon withholding the above-stated sums, you should forward

9

a check to the Internal Revenue Service for said amount pursuant to this levy. However, I would suggest that you advise the employee, Rufus Cox, of this levy and further advise him to contact the Internal Revenue Service and offer to make some disposition of this matter on a prorated payment scale whereby the total amount due of $94.67, or whatever amount the College owes him, does not have to be withheld at one time. Usually the Internal Revenue Service will make arrangements for some amount to be paid, per pay day, until the total amount is paid.

OPI~ION 68-10 (Unofficial)

January 15, 196~

You requested my opm10n as to whether or not county commissioners may be elected from districts within the county, please be advised as follows:
As you know, basically there are two methods of electing county commissioners in use in Georgia. One is that the county commissioners run "at-large", that is, they are elected by the voters of the entire county. The other is that the county is divided into districts, and each county commissioner runs from a district; i.e., each county commissioner is elected by the voters of a particular district.
With respect to the "at-large" elections, there are no districts and hence no problem of apportionment between the districts. With respect to the election by districts, there may well be an apportionment problem. In Sailors v. Board of Supervisors, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed. 2d 650, (1967) the Supreme Court reserved the question whether the apportionment of municipal or county legislative agencies is governed by the "one man one vote" requirement of the Constitution.
However, the case of A very v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed. 2d 45 (1968), which arose from Texas 406 S. W.2d 422 was argued before the Supreme Court on November 14, 1967. In that case, the Court may reach the question of whether county districts and city wards are subject to the rules prohibiting malapportionment.
I should point out that the Supreme Court in Dusch v. Davis,

10
387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed. 2d 656 (1967), did not find fault with a council plan whereby four members were elected at large without regard to residence and seven were elected at large, one each of the seven being required to reside in each of seven boroughs within the county.
Your inquiry is particularly timely, as the Gtmeral Assembly should have ample time to take whatever action it deems necessary or desirable. If the Supreme Court renders a decision in A very v. Midland County during the Session, I will call it to your attention immediately.

OPINION 68-11 (Unofficial)

January 16, 1968

You point out the following facts: The Governor has submitted to the General Assembly, an amended budget for 1969, and a supplementary appropriations bill. The amended budget, together with existing appropriations, would create the following situation: The estimated revenue in the amended budget is $735,000,000.00 for fiscal 1968, and $798,000,000.00 for fiscal 1969. The surplus forwarded for June 30, 1967, is $119,598,252.21. Thus, the total funds estimated by the Budget Bureau to be available for appropriations during this biennium, in the amended budget is $1,652,598,252.21. The amended appropriations bill, as recommended by the Governor, will be $788,072,182.84 for 1968, and $874,448,535.90 for 1969. The sum of these two appropriations exceeds by almost $10,000,000.00 the estimated revenue and surplus. This is accomplished in the budget by the projection on page 3 of an estimated lapse from 1968 appropriations in the amount of $10,000,000.00.
Thus, there is included in the $788,072,182.84 which has been appropriated in part, and is recommended to be appropriated, for fiscal 1968, the sum of $10,000,000.00 which it is estimated will lapse from appropriations for that fiscal year.
You have requested my opinion as to whether the Legislature may make appropriations up to a budget-amount which includes an estimated lapse from appropriations for the current fiscal year.

ll
The Georgia Constitution, Art. VI L Sec. IX, Par. II (Ga. Code Ann. 2-6202, Ga. Laws 1962, pp. 752, 753), provides in subparagraph (b) that: "The General Assembly shall not appropriate funds for any given fiscal year which, in aggregate, exceed a sum equal to the amount of unappropriated surplus expected to have accrued in the State Treasury at the beginning of the fiscal year, together with an amount not greater than the total Treasury receipts from existing revenue sources anticipated to be collected in the fiscal year, less refunds, as estimated in the Budget Report and amendments thereto." (Emphasis added.)
In addition to this provision ofthe Constitution, I have reviewed Ga. Code Ann. 40-407, which is substantially the same as the constitutional provision, as well as the other provisions of the "Budget Act" of 1962, as amended to date (Ga. Code Ann. Ch. 40-4), particularly Ga. Code Ann. 40-406, 40412, 40-418, and 40-420.
In my opinion, under the described facts, that amount which it is estimated will lapse from the current appropriations is "surplus expected to have accrued in the State Treasury at the beginning of the fiscal year", but such amount as it is estimated will lapse is "appropriated" rather than "unappropriated" within the meaning of the constitutional provision quoted above.
Therefore, in my opinion the answer to your question is in the negative.

OPINI0:\1 68-12 (Unofficial)

January 16, 1968

You requested an opinion regarding the provisions of Ga. Code Ann. 92A-411 which requires that all persons who operate a motor-propelled vehicle engaged in hauling persons or property for hire must obtain a chauffeur's license. Your question was whether or not these provisions were intended to be applicable only to drivers who transport people or property for hire as their primary function, as opposed to simply transporting merchandise as an incidental part of their occupation.

Ga. Code Ann. 92A-411 provides:
"Cnlicensed chauffeur forbidden to operate motor vehicle.- No person shall operate a motor-propelled vehicle

12
engaged in hauling persons or property for hire nor a school bus upon the public roads or highways within this State or upon the public streets of any incorporated village, town or city as a chauffeur without first obtaining a license under the provisions of this Chapter and the rules and regulations promulgated by the Director of the Department of Public Safety."
First, of all, as a preface to an opinion on the above-stated question, it should be noted that there are no Georgia appellate decisions construing the above-quoted Code section. Therefore, in interpreting this Act we must look diligently to the intention of the General Assembly keeping in view at all times the old laws, the evil and the remedy, City Wholesale Companr 1'. Harper, 100 Ga. App. 151, 154, 110 S.E.2d 551 (1959). See Ga. Code Ann. 102-102(9).
When there is no decisional authority interpreting the meaning of a state statute then appellate decisions from other jurisdictions may be of assistance in the interpretation of a statute and may serve as persuasive authority in this matter. Maryland Casua!tr Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex., 1940) involved the interpretation of the State of Texas' Driver's License Law which was of similar wording to that of Ga. Code Ann. 92A-411. In the Maryland Casualty Co. case, the Texas law regarding the requisites of a chauffeur's license and the definition of a chauffeur provided in part that a chauffeur was "any person who operates a motor vehicle for any purpose, whole or part time, as an employee, servant, agent, or independent contractor, whether paid in salary or commission; and every person 1rho operates a motor vehicle 11hile such vehicle is in use for hire or lease." (Emphasis added.) In this case, also, there were no Texas decisions construing this part of the statute as to whether a sole employed person was a chauffeur.
The Federal courts held in this case that the test for whether a person is a chauffeur is whether he operated the motor vehicle in whole or part time employment, whether he was at such time an employee, servant, agent, or independent contractor, and whether he was paid for his service.
The factual situation of this case bears a marked similarity to the situation as is presented by your question. In this case a

13
fifteen-year old grocery delivery boy used a truck of his employer only on rare occasions and no part of his salary was apportioned as compensation for operation of the truck. The court held that the fact that "no part of the salary paid to him was apportioned or allocated as compensation for such occasional and incidental operation of said truck" does not necessarily mean that he was not paid for such service; only that a portion of his pay was not allocated expressly for the service. The court concluded that he was paid for this service nevertheless. Marrland Casualty Co. L Cronholm, supra, p. 377.
Using the Federal court's reasoning as persuasive authority and applying it to the question presented regarding the provisions of Ga. Code Ann. 92A-41\, it is to be concluded from the broad wording of this statute that it is immaterial whether a driver transports people or property for hire as his primary function or transports merchandise as an incidental aspect of his occupation. It is to be concluded that the test in this case is whether or not the driver is paid for his services as an operator of a motor vehicle. And although the operation of such vehicle may be an incidental part of his occupation and no part of the salary paid to him is apportioned or allocated, yet, this does not necessarily exclude this activity from the occupation which is classified as a chauffeur.
A cursory look at other state court decisions interpreting those state's statutes on chauffeur's licenses and establishing a definition of a chauffeur also provides persuasive authority to the interpretation as set forth herein above. In the case of People v. Fulton, 96 Misc. 663, 162 N. Y.S. 125, 126, the court interpreted the Highway Laws, Canso!. Laws, ch. 25 28 I as added by laws 1910, ch. 374, which declared that no person shall operate or drive a motor vehicle as a chauffeur, and defined a "chauffeur" as anyone operating or driving a motor vehicle as an employee or for hire, in 289, subdivision 4, as added by Laws 1910, ch. 374, which declared that no person shall operate or drive a motor vehicle as a chauffeur unless such person shall have obtained a license. The court held that an employee of a gas company, who was using a motor car in his business of trouble hunting, was a chauffeur within the preview of this statute and was bound to obtain a chauffeur's license.
Also, Black s La11 Dictionary, 4th Ed., in its definition of the word "chauffeur" provides citations of authority which tend to

14
indicate that the scope of the term "chauffeur" turns on whether or not an operator is compensated for his activity: "An operator who directly or indirectly receives compensation for operating motor vehicle. Turner L State, 226 Ala. 269, 146 So. 601. Operators who drive jitneys in cities and tow' ns for hire, Da.r L Bush, 18 La. App. 682, 139 So. 42, 44 . . . ."
Therefore, it is my unofficial opinion that chauffeur's licenses are required both for drivers who transport people or property for hire as their primary function and, also, for those drivers who transport merchandise as an incidental part of their occupation.

OPI~IO~ 68-13 (Unofficial)

January 17, 1968

You have requested my unofficial opinion whether "a notice of arraignment to appear on the first day of the next court, which would be attached to a copy of the bond in a criminal case, [would] be sufficient notice to the defendant to satisfy Ga. Code Ann. 27-140 l."

Ga. Code Ann. 27-140 I provides in part as follows:

"ln all criminal cases, the court shall fix a date on which the defendant shall be arraigned. The clerk of the court, at least three days prior to the date set therefor, shall mail to the accused, and his attorney of record, if known, notice of the date which has been fixed for such arraignment . . . . "

Although there appears to be no statute which answers the question you have posed, I am of the opinion that it must be answered in the negative.

As a matter of criminal procedure, arraignment of a defendant in a criminal matter follows an indictment and does not become necessary until an indictment has been issued by a grand jury. Even though it is apparent in a county where criminal court is held only one week out of the year that the accused, if indicted, would be arraigned during that week, the practice of issuing notice of arraignment prior to his indictment would, in effect, presuppose that the accused would be indicted. The practice you suggest would admittedly be more convenient for solicitors in such counties. But, the purpose behind Ga. Code Ann. 27-1401 was

15
to set a time limit in which the clerk would given notice to the defendant and his counsel in order to make timely appearance before the court, impliedly after his indictment.
Therefore, it is my unofficial opinion that the notice required under Ga. Code Ann. 27-1401 should not be issued until after the indictment of the defendant in a criminal case.

OPI~ION 68-14

January 17, 1968

This is in reply to your letter in which you ask whether one's status as a member of the Board of Commissioners of the Department of Industry and Trade will affect his eligibility to run for county office.
I am aware of no law which would prohibit a State officer, such as a member of the Board of Commissioners of the Department of Industry and Trade, from running for county office. Accordingly, it is my official opinion that your question should be answered in the negative.

OPI:\IION 68-15 (Unofficial)

January 17, 1968

You ask for an opinion as to whether or not the State Highway Department can prohibit the creation of a junkyard under present law.

In your letter you state that this junkyard is less than I,000 feet from a "Federal Aid Primary System" Road. Also, that the junkyard is in an area that is not zoned for industrial use, not screened by natural objects, plantings or fences, and is plainly visible from State Route 33.
In answer to your question, l would call your attention to the "Junkyard Control Act" found in Ga. Laws 1967, p. 433, et seq. (Ga. Code Ann., Ch. 95-27). Section 4 of said Act provides as follows:
"Section 4. Conditions for Operations of Junkyards.-No person shall establish, operate, or maintain a junkyard, any portion of which is within one thousand feet of the nearest

16
edge of the right of way of any Interstate or Federal-Aid primary highway, except the following:
(a) Those which are screened by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main-traveled way qf the systems, or otherwise removed from sight.
(b) Those located within areas which are zoned for industrial use under authority of law.
(c) Those located within unzoned industrial areas, which areas shall be determined from actual land uses and defined by regulations to be promulgated by the Director of Georgia State Highway Department.
(d) Those which are not visible from the main-traveled way of the system."
As noted in your letter, the junkyard in question does not fall within any of the conditions set forth in Section 4 quoted above.
Section II of said Act reads as follows:
"Junkyards Determined to be Suisances. Any junkyard which comes into existence after the effective date of this Act and which cannot be made to conform to the Act is declared to be a public and private nuisance and may be forthwith removed, obliterated, or abated by the Director or his representatives. The Director may collect the cost of such removal, obliteration, or abatement from the person owning or operating such junkyard."
Further, Section 15 of said Act provides as follows:
"Penalty.-After the effective date of this Act, any person, partnership, or corporation that seeks to establish, or establishes, a junkyard within I,000 feet of the nearest right of way line of any Interstate or Federal-Aid primary highway that does not come within one or more of the exceptions contained in Section 4 hereof, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as for a misdemeanor. Each day's presence of the junkyard within the prohibited distance shall be a separate offense."
Inasm u.:.:h as this Act was effective on the date of approval, April 6, 1967, it appears that Mr. Murphy and Mr. Burham, who were creating this junkyard, are guilty of a misdemeanor under

17
Section 15 of this Act. The proper procedure to follow would be to contact the Solicitor General of Colquitt County and have the person in your division who is most familiar with this violation swear out an accusation against Messrs. Murphy and Burham.
In the event that this action is not effective, the junkyard may be removed, obliterated or abated and the cost of same may be collected from Messrs. Murphy and Burham. However, this action may involve legal technicalities.
Therefore, it is our opinion that you should instigate proceedings to have Messrs. Murphy and Burham convicted for a misdemeanor pursuant to Section 15 of the "Junkyard Control Act." If further advice is needed, please do not hesitate to call upon this office at any time.

OPINION 68-16 (Unofficial)

January 17, 1968

In your letter you ask whether vehicles which are based in Baldwin County, Georgia, but are used in interstate commerce, under license from and regulations of agencies governing carriers engaged in interstate commerce, are exempt from the registration requirem.ent set out in Ga. Laws 1964 Ex. Sess. p. 382 et seq. which resolution was a proposed amendment to Art. VII, Sec. I, Par. I of the Georgia Constitution. This amendment was adopted on November 3, 1964. The amendment provided in part for the registration of all motor vehicles in Baldwin County for an annual fee of $4.00.
The use of these vehicles in interstate commerce would not exempt them from the requirement to register. In the absence of Federal legislation a State may impose upon the vehicles using the highways in interstate commerce regulations for insuring the public safety and convenience and pursuant to such purpose may impose license fees which will reasonably defray the expense of administration and be a fair contributive share of the cost of constructing and maintaining the public highways. Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285, 79 L.Ed. 1439 (1935); Morfv. Bingaman, 298 U.S. 407, 80 L. Ed. 1248 (1936); Dixie Ohio Express Co. v. State Revenue Commission, 306 U.S. 72, 83 L.Ed. 495 (1939). These regulatory powers may also be exercised by a political subdivision

18
of a State if authorized by appropriate legislation. Sprout v. South Bend, 277 U.S. 163, 72 L.Ed. 833 (1928). See also DeLay v. Chattanooga, 180 Tenn. 316, 174 S. W. 2d 929 (1943).
The regulation of motor vehicles operated in interstate commerce by the Interstate Commerce C<Ymmission does not preclude the State political subdivisions of the State from protecting its highways and the public safety and exacting reasonable compensation for the use of its highways from those engaged in interstate commerce. Britten Motor Service v. Dammann, 14 F. Supp. 634 (D.C. Wis., 1936).

OPINION 68-17

January 18, 1968

This is to acknowledge your letter along with the proposed amendments to the Georgia Automobile Assigned Risk Plan. You propose to amend Rule 120-2-14-.10 so as to provide that a subscriber to which a risk is assigned shall make filings of policies and certificates for the applicant and all relatives of a family residing in the same household provided they do not own a motor vehicle.

You further propose to amend Rule 120-2-14-.09 to allow a person subject to epilepsy to participate in the Plan if that person can meet certain conditions.

I have examined the proposed amendments to the Georgia Automobile Assigned Risk Plan and they have my approval as to legality as contemplated by Ga. Code Ann. 56-216(2). You are aware of Rule 120-2-14-.23(1) which states that the Insurance Commissioner should consult with the insurers before amending the Georgia Automobile Assigned Risk Plan. I assume you have done so in this instance.

OPINION 68-18

January 18, 1968

You refer to a discussion between you and the Executive Assistant Attorney General, regarding recent audits of various public school systems of this State. You explain that when allotted funds from the State Board of Education for school construction result in construction projects of less than

19
$200,000.00, the Georgia Education Authority (Schools) does not directly supervise construction but requires the local school system to construct the project itself and then be reimbursed by the Authority. This procedure, you state, often makes it necessary for the local school system to borrow a substantial part of the construction costs for a period of nine months to a year. You request an official opinion as to whether su.ch borrowing is within the legal power of local school systems. It is assumed that the local systems in question are county school systems whose powers and obligations with respect to such short-term borrowing are unmodified by local or special constitutional amendment or law.
Subject to the debt limitation provisions of the Georgia Constitution, there is no serious question as to the authority of a county board of education to borrow money for a period of nine months to a year for the purpose of building school houses.
Authority to borrow against anticipated tax collections is granted to county boards of education by Ga. Code Ann. 231716, as follows:
"Counties, municipalities, county boards of education, and other political subdivisions of the State which are authorized to levy taxes shall have the power and authority, within the limitations prescribed by Article VII, Section VII, Paragraph IV [ 2-6004] of the Constitution [of 1945], to issue notes, certificates, or other evidence of indebtedness in anticipation of the collection of taxes levied or to be levied during the calendar year."
Further, Ga. Code Ann. 2-6004 (Art. VII, Sec. VII, Par. IV, Georgia Constitution of 1945) authorizes county boards of education " ... to make temporary loans between January lst and December 31st in each year to pay expenses for such year. .. ," upon certain conditions or limitations which do not restrict expressly the purposes for which such funds may be expended.
Funds borrowed pursuant to those provisions in anticipation of tax collections must, of course, be expended "for educational purposes" but that expression " . . . is broad enough to cover all things necessary or incidental to the furtherance of education, which would include the construction of schoolhouses ...."

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Board of Commissioners of Twiggs County v. Bond, 203 Ga. 558, 560 (1948).
It must be carefully noted that the incurrence of such a debt would be subject to the debt limitation provisions set forth in Art. VI I, Sec. VI I of the Georgia Constitution.

OPINION 68-19

January 22, 1968

I have received your request for my official opinion concerning ad valorem taxation of motor vehicles used in interstate commerce and the question of the tax situs of motor vehicles.

The situs or location of personal property, including motor vehicles, for tax purposes is normally the county and state where the owner resides. Property used in connection with a trade or business acquires a tax situs where it is more or less permanently situated, i.e., where the business is located. Op. Att'y. Gen. 1962, p. 483.

The Act approved March 16, 1966 (Ga. Laws 1966, p. 517) made no real change with respect to taxing motor vehicles. Section 18 of the Act provided:

"Nothing contained within this Act shall be construed so as to require the payment of an ad valorem tax prior to the purchase of a license tag for any motor vehicle which is not subject to ad valorem taxation within this State...." (Ga. Code Ann. 92-1518).

The Act neither extended our tax authority nor decreased such authority. With these general propositions in mind the four specific questions you ask may be answered in the order presented.
"Is the tax imposed by this Act on motor vehicles limited to those motor vehicles which are primarily based and used at terminals located in Georgia and which have their tax situs in Georgia?"

Motor vehicles, in my opinion, are subject to ad valorem tax by the various taxing jurisdictions only where the vehicle has acquired a tax situs. A vehicle used in connection with a commercial trucking terminal and primarily based at such

21
terminal would acquire a Georgia tax situs. See generally Davis v. Penn Mutual Life Insurance Co., 198 Ga. 550 (1944).
"Can the tax imposed by this Act be assessed against motor vehicles which are primarily based and used in states other than Georgia and which have their tax situs in such other states, if used to some extent in the State of Georgia in the course of interstate commerce?"
The Georgia Motor Vehicle Tax Act imposes a tax only on those vehicles which have acquired a tax situs within this state as a result of being primarily based and used within this state. The temporary use of a motor vehicle in interstate commerce within this state would not result in the acquisition of a Georgia tax situs under existing law. Op. Att'y. Gen. 1962, p. 485.
"Does this Act, or any other Act, authorize the various taxing jurisdictions to impose a tax on motor vehicles used in interstate commerce on the basis of any allocation formula devised by such taxing jurisdictions?"
The use of an apportionment formula in the field of ad valorem taxation has been successfully employed in other states. Branijf Airways, Inc. v. Nebraska State Board, 347 U.S. 590, 74 S. Ct. 757, 98 L. Ed. 967 (1954). However, Georgia has not adopted legislation which would authorize the use of an allocation formula. Lewis and Holmes Motor Freight Corporation v. City ofAtlanta, eta/., 195 Ga. 810 (1943).
"Does this Act impose a tax on all motor vehicles which are in fact in Georgia on the first day of January even though some of such motor vehicles are primarily based and used in states other than Georgia and even though they have their tax situs in such other states?"
The Act imposing ad valorem taxes on motor vehicles imposes a tax on:
"Every motor vehicle owned in the State of Georgia on the first day of January. . . ."(Ga. Code Ann. 92-1503).
This, in my opinion, is an expression of the General Assembly that all motor vehicles having a Georgia tax situs on January Ist shall be taxed.

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OPINION 68-20 (Unofficial)

January 22, 1968

This is in reply to your letter to the Georgia Department of Revenue, which was referred to this office.

In your letter you ask whether a cooking wine manufactured by your Company, ostensibly rendered incapable of being consumed as a beverage because of the addition of salt and papian, is subject to the Georgia excise tax on wine (Ga. Laws 1935, p. 992, as amended; Ga. Code Ann. Chs. 58-8 and 58-9).

As I understand it, your question was prompted as a result of the recent federal changes exempting cooking wine from all federal excise taxation (32 Fed. Reg. No. 230, Wednesday, November 29, 1967, Part 170, p. 16260).

Please find enclosed an opinion of the Attorney General, dated November 2, 1959 (Ops. Att'y. Gen., 1958-59, pp. 206-7) which still reflects the opinion of this office: that the Georgia excise tax is on "wine" regardless of its intended use; or, in your case, regardless of whether it is capable of being consumed as a beverage, nor would the new federal regulations alter this position.

OPINION 68-21

January 23, 1968

This is in reply to your request for an opinion in which you ask whether or not the chairman of a board of county commissioners may be employed as a full-time probation officer. I assume that your question relates to the employment of a probation officer by the State Board of Probation, rather than the employment of a probation officer by any of the county probation systems. The State Board of Probation is, as you know, authorized to employ circuit probation officers. Ga. Code Ann. 27-2706.

Inasmuch as this opinion is based upon the assumption that the probation officer is to be employed by the State Board of Probation, the provisions of Ga. Code Ann. 89-103 which specify that no person may hold a plurality of county offices, would be inapplicable. It is my opinion, therefore, that the chairman of a county board of commissioners may be employed as a full-time probation officer by the State Board of Probation.

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OPINION 68--22

January 23, 1968

This is in response to your recent request for my opinion as to the proper procedure for disposing of surplus real property in Greene and Dooly Counties.
Your letter indicates that both tracts were used as county forestry unit headquarters under cooperative agreements with the respective counties. Although the cooperative agreement with each county will remain in effect, the merger of Greene and Taliaferro Counties into one forestry unit and a similar merger between Dooly and Crisp Counties have necessitated the relocation of these consolidated units at more suitable central locations.
It is provided in Ga. Laws 1955, pp. 309, 321 (Ga. Code Ann. 43-233) that:
"All fire-fighting equipment and buildings now in use under cooperative agreement between the Forestry Commission on the one hand, and counties . . . on the other hand, shall be appraised in accordance with said agreements. The latter contracting parties shall have the first option to purchase said equipment and buildings in accordance with said agreements. In the event that such option or options are not exercised, the Forestry Commission shall within one year reimburse said parties for their proportionate invested interest at the appraised value in said equipment and buildings, provided, same is in the judgment of the Commission useful and necessary for the carrying out of the provisions of this Act; and provided further, that said parties apply for such reimbursements within six months from the date of the passage and approval of this Act." (Emphasis added.)
It is my official opinion that the above-quoted Act, which was approved March 3, 1955, does not entitle Greene or Dooly Counties to an option to purchase or right of reimbursement for the equipment and buildings involved.
This section refers only to equipment and buildings "now in use under cooperative agreement." Since the Dooly County forestry

24
unit was not in use until August, 1957, it Is not within the category embraced by the statute.
The materials accompanying your request disclose that the Greene County facility went into use on an unspecified date in March, 1955. Even assuming that this facility was in operation upon approval of the Act on March 3, 1955, the county would have no option to purchase. The Act refers to options to purchase "equipment and buildings in accordance with said agreements." However, the specific cooperative agreement with Greene County limits the option to equipment and permits its exercise only upon termination of the agreement. From your letter it appears that only the buildings are to be sold, the equipment having been transferred to the newly formed Greene-Taliaferro forestry unit. Since the equipment was retained under the continuing agreement with Greene County, no option arose.
The above comments, although made with reference to option rights, are equally applicable to the right of reimbursement for contributed funds, which, based on information furnished with your letter, must be disallowed for the additional reason that neither county applied for same within six months of the approval of the Act.
I am pleased to direct your attention to Ga. Laws 1955, pp. 309, 319 (Ga. Code Ann. 43-218) which provides in pertinent part as follows:
" .... The Director, with the approval of the Commission, shall have full power and authority to . . . sell . . . lands under its jurisdiction when in their judgment it is advantageous to the State to do so in the highest and orderly development and management of State forests: Provided, however, that said ... sale ... shall not be contrary to the terms of any contract which they have entered into."
It was held in Ops. Att'y Gen. 1960-61, p. 381, that the Director of the Georgia Forestry Commission, with the approval of the Commission, may dispose of surplus properties under the above quoted code section. I am unaware of any recent development, either in statute or case law, which would require a departure from this former ruling.
It is, therefore, my official opinion that disposition of these

25
tracts may be made in accordance with Ga. Code Ann. 43-218 without the necessity of first offering to sell same to Greene and Dooly Counties respectively.

OPINION 68-23

January 24, 1968

This is in reply to your request for an opinion concerning the legality of granting additional compensation for rock excavation at the Atlanta Farmers Market performed by the Coite Somers Company pursuant to a contract let on March. 29, 1965, by the Georgia Farmers Market Authority which provided for construction of "Building 'K'.and Addition to Service Station."

This rock excavation was not included in the original contract but was authorized by Change Order No. 5 executed on June I, 1966, which provided for removal of a specified volume of rock at an agreed unit rate per cubic yard. In the actual excavation of the rock the subcontractor which performed the work discovered that the rock was cracked, full of voids and cr~vices, with spasmodic hollows and solid spaces which rendered the excavation considerably more hazardous and costly than originally contemplated since normal drilling, blasting, and removal techniques could not be employed and shoring of rock trenches was necessitated. As an additional by-product of this unexpected condition and the erratic blasting results, adjacent concrete ultimately cracked and settled and the contractor was required to replace this damaged paving.

The contractor is now claiming an additional $12,840.18 which represents the actual cost incurred for the excavation work above the amount authorized by Change Order No. 5. The authority for this adjustment is stated to be Article 15 of the general conditions to the contract which provides, inter alia:
"Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications, the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions."
The file clearly indicates that the unusual subsurface conditions encountered could not have been anticipated prior to the time the

26
rock excavation was actually undertaken. However, it further appears that Change Order No. 5 which contained the agreed unit price per cubic yard for this rock excavation was executed subsequent to the time the excavation was actually completed. At this time the actual cost of the excavation should have been known to the contractor and it is my opinion that the additional excavation expenses incurred prior to the execution of Change Order No. 5 do not fall within the adjustment authority of Article 15 of the general contract conditions which clearly contemplates adjustment of an agreement wpich had been entered into prior to discovery of subsurface variations.
With regard to the extra cost incurred in replacing cracked and settled paving which resulted from the unusual rock conditions encountered, and the consequent erratic blasting results, it appears that these costs were not known until August 17, 1966, when the settling was discovered during a semifinal inspection by the architects. Since this damage was the direct result of the unexpected subsurface conditions, and was not known or anticipated at the time Change Order No. 5 was executed, it is my opinion that Article 15 of the general contract conditions authorizes an adjustment to the contract in the amount of $6,042.56 which represents the actual cost to the contractor for removing and replacing the cracked and settled paving.

OPINION 68-24 (Unofficial)

January 24, 1968

You requested my view on whether or not the Vietnam conflict would be "in time of war" so as to exclude certain coverage ordinarily given under a policy of insurance. As you know, Congress has never formally declared war on the enemy in that conflict.

In the case of Mutual Life Insurance Company of New York v. Davis, 79 Ga. App. 336 (1949), the Court expressed the opinion that:

"When one sovereign nation attacks another with premediated and deliberate intent to wage war against it, and that nation resists the attacks with all the force at its

27
command, war in the grim sense of reality exists and courts are not required to wait on formalities before recognition of the fact." 79 Ga. App. 336 at 339, quoting with approval from New York Life Ins. Co. v. Bennion, 158 F.2d 260 (1946).
The Court states that because of the extreme danger existing in time of warfare, the double indemnity clause of many insurance policies contains an exclusion for military or naval service in time of war.
Because this precise question has not arisen in a reported decision by a Georgia court which I could find, I cannot give you a definite answer. However, the above case indicates that a Georgia court might not require a formal declaration of war by Congress before the exclusion "in time of war" would apply.

OPINION 68---25 (Unofficial)

January 24, 1968

This is to acknowledge receipt of your letter which amplifies certain facts in the problem you have encountered in securing an ambulance service for your area.
At your request, I have reviewed these facts and the entire problem at length, but I regret that these additional facts do not change my original opinion as expressed in my earlier letter. Then, as now, I felt that the Constitution of Georgia would not allow such an arrangement with a private ambulance service which was being operated for a profit.

OPINION 68---26

January 25, 1968

This is in reply to your letter wherein you requested my opinion on the following question:
"May the [Highway] Department legally reimburse Counties, Municipal Corporations, Public Corporations or Authorities created by the General Assembly of Georgia for relocating water distribution and sanitary sewer facilities which are owned by such organizations when such facilities are in conflict with Highway construction?"

28
You stated that you are aware of the Opinion of the Attorney General dated June 26, 1962, which dealt with the constitutionality of payments to municipalities. However, you further state that you are not sure whether this 1962 Opinion, (Ops. Att'y. Gen., 1962, p. 276), dealt with the above-mentioned entities.
The Opinion dated June 26, 1962, was specifically applicable to municipalities and did not have reference to counties, public corporations or authorities created by the General Assembly.
The law applicable to this particular situation is found in Ga. Laws 1961, p. 453, et seq. (Ga. Code Ann. 95-1509, et seq.) and Georgia Constitution, Art. VII, Sec. II, Par. VI (Ga. Code Ann. 2-5506). Ga. Code Ann. 95-1509 provides as follows:
"The State Highway Department of Georgia is authorized to pay or participate in the payment of the cost of removing and relocating water distribution and sanitary sewer facilities owned by municipal corporations, counties, or other governmental subdivisions of the State of Georgia, or by authorities, controlled by such municipal corporations, counties, or other governmental subdivisions, without regard to whether such facilities were originally installed upon rightof-way of a State-aid road or highway, a county road, or a city street, where such removal and relocation is made necessary by the construction or improvement of any road, street, or highway by the State Highway Department of Georgia."
The above-cited constitutional provision provides as follows:
"Notwithstanding any other provisions of this Constitution, the General Assembly is hereby authorized to provide by law for the granting of State funds to the municipalities of Georgia, in such manner and form and under such procedure as the General Assembly may prescribe. The General Assembly is also authorized, but not directed, to provide the purpose or purposes for which such funds may be expended by the municipalities. The General Assembly is hereby authorized to exercise the power of taxation over the entire State in order to carry out the provisions of this paragraph."
....

29
As can be seen bove, the State Highway Department is authorized to participate in payments to municipal corporations, counties, or other governmental subdivisions of the State of Georgia, or by authorities controlled by such municipal corporations, counties, or other governmental subdivisions. Also, the General Assembly is authorized to provide for the granting of State funds to municipalities in such manner and form and under such procedure as the General Assembly may prescribe.
After a thorough review of the laws, principles, statutes and constitutional provisions involved, I can find nothing illegal concerning reimbursement to the entities specifically described in Ga. Code Ann. 95-1509.
However, your question also concerns public corporations which are not specifically listed in the aforementioned Ga. Code Ann. 95-1509. Public corporation is defined in Ga. Code Ann. 22-103 as follows:
"A public corporation is one having for its object the administration of a portion of the powers of government, delegated to it for that purpose-such are municipal corporations."
In reviewing the annotated cases following Ga. Code Ann. 22-103, I find that Hammond v. Clark, 136 Ga. 313, 329 (1911 ), holds that counties are public corporations. Accordingly, public corporations, when referred to in this Opinion, means municipal corporations and counties.
In all interpretations of statutes, the Court shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil and the remedy. Ga. Code Ann. 102102(9). It is apparent that Ga. Code Ann. 95-1509 was intended to include public corporations, as such are defined in Ga. Code Ann. 22-103, and cases cited thereunder; that is, as municipal corporations and counties.
Therefore, it is my opinion that the State Highway Department of Georgia may legally reimburse counties, municipal corporations, public corporations, as heretofore defined in this Opinion, or authorities created by the General Assembly of Georgia for relocating water distribution and sanitary sewer facilities which are owned by such organizations when such facilities are in conflict with highway construction.
,,) 5 !<: .~. ~ 't

30

OPINION 68--27

January 25, 1968

You requested an opinion as to whether the Georgia Art Commission could legally use certain Federal funds for the purpose of having consultants study and report to the Commission ways and methods of furthering some particular field of the Arts in the State of Georgia.

According to your letter, the Georgia Art Commission received a $25,000.00 Federal non-matching grant from the National Foundation of the Arts and the Humanities, and of said grant, there is now remaining approximately $3,200.00. Furthermore, you state that the Commission is considering using this remaining sum to pay writers to act as consultants to the Commission and report to the Commission on ways of promoting poetry reading in the State.

Also, you state that there is a possibility of having consultants report on a summer project of a children's theater. You state that since the Commission acts in only an advisory capacity, any recommendations made by the consultants would be made available to groups capable of putting into operation the recommendations rather than same being actually pursued by the Commission.

Finally, the consultants would use certain amounts of the above-referred funds for actual productions, but that the primary purpose of the work of the consultants would be to make the study and issue a report.

Your attention is called to Ga. Code Ann. 40-2608 which provides in part that:

'The Commission is hereby authorized to receive and accept gifts, grants, donations and bequests for the purpose of carrying out the provisions of this Chapter."

Therefore, since you state that the funds from the National Foundation of the Arts and the Humanities consisted of a nonmatching grant to the Georgia Art Commission, it is my opinion that such constitutes a "grant" within the above statute, and that the Commission is authorized to accept and expend the remaining sum of $3,200.00 for the purposes stated in your above-mentioned letter since the preparation of the reports by the consultants would

31
appear to come within the defined purposes of the Georgia Art Commission.

OPINION 68-28

January 25, 1968

The memorandum from your predecessor concerning the agreement with the American Society for Testing and Materials, has been received. He forwarded an Agreement which the American Society for Testing and Materials (AST M) has requested to be executed with the State Highway Department of Georgia. Also, he stated that the Materials and Testing Division has, from time to time, xeroxed certain American Society for Testing and Materials Specifications and forwarded them to other persons. He requested comments of this office relative to your practices and advice as to the Department's execution of the proposed contract with the American Society for Testing and Materials.

I am assuming that the ASTM Specifications, which the Highway Department has published in 32 separate volumes, are under a claim of copyright duly registered. The memorandum does not state that condition, but it appears from the context that such is the case. Under that assumption, it would appear that your xeroxing of these materials would violate their claim of copyright in the same. Accordingly, the penalties for the violation of a claim of copyright ai;"e: (l) injunction, (2) damages and (3) criminal fine, if such a violation is willful.

The only limitation on an individual's property in a claim of copyright is that the doctrine of fair use permits certain uses of the materials without prior permission having been given by the copyright owner. This doctrine is ordinarily restricted to scientific, legal, medical and similar materials or dictionaries, directories, biographies or reference materials, where the use occasioned is combined with the independent work product of the user in order to achieve a new result, if the non-permissive use does not injure the owner of the copyright. However, it is clear that this doctrine does not permit an extensive or wholesale copying or publication of copyrighted materials. Jack Benny v. Loew's, Inc., 239 F.2d 532 (1956).

The Agreement which was submitted with the request

32
memorandum has been reviewed. It appears that the ASTM is attempting to establish a system of permissions and payments so that permission for copying may be obtained with ease and the payment thereof may be established on a just and equitable basis. Hence, the Agreement submitted would allow, for a period of two (2) years for $50.00 per year, your Department to copy any of AST M's Copyright material in amounts not to exceed fifty (50) copies. At the end of the two (2) year period, AST M is to have established a standard for permissions and payments. lt is apparent that AST M is now concerned that without such an Agreement, there may be created an implied consent to copy. It further appears that at the end of the two (2) year period, AST M will have established a system of fees for permission to copy portions of its several publications. I feel certain that the fees established will probably exceed the $50.00 per year, and most likely will be a system whereby a fee will be due for each copying of the Specification.
Nevertheless, I find the Agreement in proper legal form. Of course, the decision in this matter must rest with your Department.

OPINION 68-29 (Unofficial)

January 25, 1968

You requested an opinion as to what disposition the State made of the abandoned right-of-way for the old Lazarreta Creek bridge on the Tybee side (eastern) of Lazarreta Creek in Chatham County, Georgia. In other words, you want to know whether the State considers this as an abandoned right-of-way or did the State attempt to convey the property to Chatham County or some other person?

When the State built a new bridge over Lazarreta Creek, the right-of-way was relocated. to the north and the old right-of-way was abandoned for use as a highway. However, since the State Highway Department of Georgia holds title to the old right-ofway and there is no reversionary clause in the deed of conveyance from Chatham County to the State Highway Board of Georgia, the title to the abandoned portion of the right-of-way remains in the State Highway Department of Georgia. For a case dealing

33
with reversionary clauses in State Highway Department right-ofway deeds, see State Highway Department v. Williams- Lumber Company, 222 Ga. 23 (1966).
The State Highway Department of Georgia has not attempted to convey this property to Chatham County or to any other person. The proper procedures for such a conveyance would be through a resolution passed by the General Assembly of Georgia authorizing the Governor, acting for and in behalf of the State of Georgia, to convey this land to Chatham County or other authorized persons.

OPINION 68-30 (Unofficial)

January 25, 1968

This is in reply to your recent letter requesting my opinion as to whether you may legally be employed as a teacher in the Appling County school system and also serve as an elected member of the Appling County Board of Education.
Ga. Code Ann. 89-103 prohibits any person from holding more than one county office at the same time. However, the word "office" has been distinguished from employment as being always created by law whereas employment, being contractual, is not and cannot be an "office." Accordingly, the position of teacher in a public school is not an "office" but is merely employment. Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (1918). I am not aware of any other statute which would prevent you from holding the two positions. At common law, however, public officers have consistently been prohibited from holding two incompatible positions at the same time because of the conflict of interests presented by being, for example, both master and servant. 67 C.J.S. Officers 23. While some states have held that the incompatibility does not arise when one of the positions is an office and the other is merely an employment (State ex ref Horne v. Wilkinson, 220 Ala. 38; Anson v. Montgomery County, 71 Pa. Super. 225), I believe that the Georgia courts, by keeping in view the evil and the remedy (Ga. Code Ann. 102-102), could find a common law conflict of interest in your serving both as a member of the school board and as an employee of such board.

34

OPINION 68---31 (Unofficial)

January 25, 1968

This is in reply to your letter asking for our opmwn as to whether a councilman of a city of under two thousand inhabitants may lawfully be employed in another capacity by the city. If not, you have asked whether a councilman may lawfully be paid a salary higher than that of other councilmen to compensate him for additional duties.

Turning to your first question, I find that the General Assembly, in 1889, passed a statute by which any councilman or alderman of any municipality was rendered ineligible to hold any other municipal office during the term of office for which such alderman or councilman was chosen. Ga. Laws 1889, p. 181. The statute was subsequently amended to apply only to towns of two thousand or more inhabitants. Ga. Laws 1890-91, p. 226. The statute, as amended, was then codifjed as 739 of the Code of Georgia of 1895 and as 886 of the Code of Georgia of 1910. However, when the same law was carried forward as 69-20 I of the Code of Georgia of 1933, the exemption as to towns with a population less than two thousand persons was deleted by the legislature. Accordingly, I believe the courts would be guided by the last expression of the legislative will on the subject and would find that the exemption was repealed at the time the 1933 Code was adopted. Kitchens v. State, 116 Ga. 847 (1902).

Turning to your second question, I am aware of no general legal prohibition against amending your city charter so as to authorize paying councilmen, aldermen or any other public official, varying amounts of compensation based upon the different duties imposed upon each of them. In making this observation, however, I wish to say that I have not made reference to your city charter.

OPINION 68---32 (Unofficial)

January 26, 1968

You requested an opmwn as to whether the State Highway Department of Georgia can prohibit the parking of cars on the

35
State Highway Department right-of-way and displaying and selling nuts on the right-of-way.
Ga. Code Ann. 95-610 provides as follows:
"It shall be unlawful for any person or persons to sell merchandise, fruits or vegetables or nuts or anything else of value while parked on State right-of-way of the State highways of Georgia, except that the sellers of fruits, nuts and/or vegetables shall be exempt from the provisions of this law [ 95-608 through 95-611 ], provided they display said products no nearer than 15 feet from the edge of the pavement of said highways, so as to allow potential customers room to park on the shoulders on said highways, allowing full clearance of paved sections."
The penalty for violating this Code section, outlined in Ga. Code Ann. 95-9922, is a misdemeanor and upon conviction of a violation, an individual would be punished as provided by law.
Ga. Code Ann. 95-610 merely provides that sellers of merchandise, fruits, vegetables or nuts, cannot be punished for a misdemeanor provided they display their products no nearer than fifteen (15) feet from the edge of the pavement of the highway. This Code section in no way does away with the requirement that the permission to sell such merchandise must first be granted by the State Highway Department.
In view of the foregoing, it is our opinion that the State Highway Department of Georgia has the authority to prohibit the selling and displaying of merchandise on the right-of-way of the State Highway Department of Georgia.
For your information, I am enclosing a xeroxed copy of House Bill No. 98 I, which would do a way with the exemption provided in Ga. Code Ann. 95-610. If this Bill is passed, it shall be unlawful for any person or persons to sell merchandise, fruits, vegetables or nuts or anything else of value while parked on State right-of-way of the State Highways of Georgia. Anyone violating this proposed new law would be guilty of a misdemeanor.
Under the present law, the State Highway Department of Georgia is authorized, pursuant to the Resolutions abovementioned, to prohibit the parking of automobiles, trucks and other vehicles in the area described in these Resolutions.

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OPINION 68-33 (Unofficial)

January 26, 1968

You ask whether the Board of Commissioners is authorized to reinstate Mr. Jenkins as a member of the Peace Officer's Annuity and Benefit Fund in view of that specific portion of Ga. Code Ann. 78-905 which provides:
" . . . if a member takes a refund after April I, 1965, while still employed as a peace officer, he shall thereby forfeit his rights of ever becoming a member of the fund again ...."
You state that Mr. Jenkins resigned as a peace officer effective June 5, 1966, his last day of active duty, and received, that day, all money due him from the Department of Public Safety, including thirty (30) days' accumulated leave pay. Further, on June 18, 1966, he signed a Pension System Refund Request form which included a statement that he was not still employed as a peace officer. A refund check was mailed to him on June 20, 1966, and cashed by him three (3) days later.
For accounting purposes, in order to include the thirty (30) days' accumulated leave pay, the Department considered Mr. Jenkins employed until July 5, 1966 and your Board considered him employed until that date since you count accumulated leave as creditable service for retirement purposes.
OPINION
The facts stated above do not authorize the Board of Commissioners to refuse on the basis of the quoted portion of Ga. Code Ann. 78-905 Mr. Jenkins' application for reinstatement in the Fund.
DISCUSSION

The question presented is whether Mr. Jenkins took a refund after April I, 1965 while still employed as a peace officer.
The case of Purdie v. Jarrett, 222 Ga. 795 (1966), strongly suggests that the words "while still employed" in the abovequoted portion of Ga. Code Ann. 78-905 refer to a period of time during which services actually are rendered or are expected to be rendered and not to a period of time following the completion of services. In that case, involving the construction of

37
a rule of the Pension Board of Fulton County, the court held that a teacher who ceased active service on June 30, 1964, was entitled to receive pension payments during the months of July and August 1964 although she received during those months payments of deferred compensation which were counted toward her creditable service under the pension system. By direct analogy, Mr. Jenkins ceased active service on June 5, 1966, and was entitled during the latter part of June 1966 to take a pension system refund, although for accounting purposes the Department considered him "employed" and although for purposes of determining his creditable service under the pension system the Board of Commissioners considered him "employed".

OPINION 68-34 (Unofficial)

January 26, 1968

This is in reply to your letter asking whether Georgia Election Code conflicts with and supersedes Ga. Laws 1937, p. 1415, with regard to the filling of a vacancy in the office of Stephens County Commissioner. I understand that the vacancy is for the term January I, 1968, through December 31, 1970.

I have carefully reviewed the Georgia Election Code, Ga. Code Ann. 34-101 et seq., and have found nothing therein which would supersede the requirement of Ga. Laws pp. 1415, 1418, that vacancies shall be filled by special election for the unexpired term. Accordingly, I believe the special election you contemplate holding should be for the term expiring December 3 I, 1970.

OPINION 68-35

January 29, 1968

You requested my official opinion as to whether there was any legislation prohibiting the Merit System from allowing an applicant who is currently on parole from taking a clerical examination. The applicant has been released from Colony Prison Farm at Milledgeville, Georgia, after serving approximately twoand-one-half years of a sentence for forgery. You further requested that this opinion also treat the matter of admission of parolees as a class to Merit System examination.

To the best of my knowledge, there are no such prohibitions

38
unless the position for which the applicant is a candidate could be classified as an office or an appointment of honor or trust.
Art. I I, Sec. I I, Par. I of the Constitution of the State of Georgia provides:
"The General Assembly may provide, from time to time, for the registration of all electors, but the following persons shall not be permitted to register, vote or hold any office, or appointment of honor, or trust in this state, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons."
The foregoing mandate is supplemented by Ga. Code Ann. 89-101, of which pertinent provisions are:
'The following persons are held and deemed ineligible to hold any civil office . . . :
"3. Any person convicted and sentenced finally for any felony, under the laws of this or any other State, involving moral turpitude, the offense being also a felony in this State, unless restored by a pardon from the proper executive, under the great seal of the State, to all the rights of citizenship."
The term felony means an offense, for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, Ga. Code Ann. 26-10 I, and the offense of forgery may be properly described as a felony where the punishment prescribed is imprisonment in the penitentiary, Gray v. State, 6 Ga. App. 428 (1909), although certain classes of forgery constitute misdemeanors only, Ga. Code Ann. 263903, 26-3904. Even though parolees from the penitentiary and all convicted felons, before pardon, are ineligible for any civil "office," this disability to my way of thinking would not extend to mere employment where such employment does not amount to a position of trust. These terms "office" and "employment" have been distinguished in another context by the Court of Appeals in Board of Education v. Bacon, 22 Ga. App. 72 (1918), where, at page 74, the court said:

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"Although an office is an 'employment,' it does not follow that every employment is an 'office' . . . . The officer is distinguished from the employee in the greater importance, dignity, and independence of his position, in being required to take an official oath, and perhaps to give an official bond, in liability of being called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. The distinction is plainly taken between a person acting as a 'servant' or 'employee' who does not discharge independent duties but acts by the direction of others, and an 'officer' empowered to act in the discharge of a duty or legal authority in public life."
In the broad sense employment alone would be tantamount to a position of trust only where the employee has custody of public funds or property, where the employee has access to confidential records, or where the employee has a responsible charge or office. See 'Trust," Webster's New International Dictionary 2727, nn. 5 & 6 (2d Ed. 1945). In the restrictive legal sense, in order to occupy a position of trust, one must have reposed in him an equitable obligation "to apply or deal with property for the benefit of some other person, or for the benefit of himself and another or others according to such confidence." McCreary v. Gewinner, 103 Ga. 528, 534 (1897).
Therefore, absent some condition imposed by the terms of a particular parole, the parolee is not, in my opinion, prohibited from State employment. Moreover, the Legislature has manifested an intendment that parolees be lawfully employed. Ga. Code Ann. 77-514.
You are aware, of course, that Art. XIV, Sec. I, Par. I of the Constitution of the State of Georgia vests the State Merit System with broad discretion in selection of State personnel on a basis of merit, fitness, and efficiency. Merit System Rule 6, Sec. 6.200, Par. 6.204, which carries the force and effect of law [Ga. Code Ann. 40-2207 (b)], provides that the Director, in accordance with policies established by the State Personnel Board, may refuse to examine one who has been convicted of criminal conduct. The permissive nature of this regulation would seem to make it quite clear that the converse is also true and that, if he so desires, the Director may, in accordance with policies established by the State Personnel Board, allow the examination of such an individual.

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OPINION 68-36 (Unofficial)

January 29, 1968

A sheriff is a constitutional county officer as contemplated by Art. XI, Sec. II, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-7901). Cole v. Holland, 219 Ga. 227, 229 (1963). Accordingly, it may not be abolished except by constitutional amendment. Morris v. Glover, 121 Ga. 75 I (1905). Similarly, the duties of sheriffs are set Ol!t as a general law in Ga. Code Ann. 24-2813 and consequently such duties could not be altered by local legislation without a constitutional amendment. See Art. XII (Ga. Code Ann. Ch. 2-80) of the constitution. Fulton County is the only county of which I am aware which has a local constitutional amendment authorizing the General Assembly to prescribe police powers in the county. Ga. Laws 1951, p. 828.
Fulton County has not been provided a separate county police force but police functions are carried out in the county by the City of Atlanta pursuant to a contract with the county.
While the office of sheriff cannot be abolished by local legislation, county commissioners or the ordinaries in those counties without commissioners are authorized to establish county police forces under their direction and control. Ga. Code Ann. Ch. 23-14. These police forces are completely independent from the sheriff. Where there does exist such a dual police force, I understand it is not uncommon for the sheriff and the county police to reach an understanding as to their individual responsibilities.

Such understanding being in the nature of private agreements, however, I am unable to ascertain in how many counties the sheriff has voluntarily curtailed his powers.

OPINION 68-37 (Unofficial)

January 30, 1968

You ask whether the following transfers of real propery are taxable under the provisions of Ga. Laws 1967, p. 788.

"1. A deed from a mortgagor to the Secretary of Housing and Urban Development given in lieu of foreclosure.

41
"2. A deed from a mortgagor to a mortgagee, and a subsequent conveyance of the same property by the mortgagee to the Secretary; also in lieu of foreclosure. "3. A deed from the mortgagor to the Secretary following acquisition by the mortgagee at a foreclosure sale."
The Department of Housing and Urban Development obviously is an instrumentality of the United States and not subject to State taxation, except as expressly provided for by Congress. Under the Federal statutes relating to mortgage insurance (12 U.S.C.A. 1701 to 1750) it appears that the property must be transferred to the Federal agency before the guarantee obligation of the government is carried out. Therefore, the above transfers are indispensable proceedings in the enforcement of a Federal obligation.
The Federal agency cannot be forced to pay the transfer tax on the above transactions as a prerequisite to filing deeds held by the agency for the protection of the government's interest. Federal Land Bank of New Orleans v. Crosland, 261 U.S. 374, 43 S. Ct. 385, 67 L. Ed. 703 (1923); Pitman v. Home Owners Loan Corp., 308 U.S. 21, 60 S. Ct. 15, 84 L. Ed. 11 (1939); Laurens Federal Savings and Loan Association v. South Carolina Tax Commission, eta/., 365 U.S. 517, 81 S. Ct. 719, 5 L. Ed. 2d 749 (1961). Since section 5 of the Transfer Tax Act provides that no deed shall be recorded unless the tax imposed by the Act has been paid, it is apparent that the Legislatt,tre intended that the above transactions not be taxable.
You also ask the following:
"4. A deed from the Secretary of Housing and Urban Development to an individual or corporation conveying real property which previously has been acquired under the above-mentioned insurance programs."
The transfer in this instance by the Federal agency is also an indispensable function which the Federal agency is authorized to perform in carrying out the mortgage insurance program. The Transfer Tax Act imposes liability primarily upon the grantor and secondarily upon the grantee. (Ga. Code Ann., 92-802).
Since the above transaction is not taxable to the Federal agency, the grantee, who is secondarily responsible, would not be

42
liable for the tax on the exempt transaction. State v. Green, 17 3 So. 2d 129 (Fla. 1965).
In summary, the transfers you have outlined in your letter would not be taxable under the provisions of the Transfer Tax Act. (Ga. Laws 1967, p. 788).

OPINION 68-38

January 30, 1968

This is in reply to your letter of the 26th, instant, wherein you refer to the Department of Education's appropriation on a lineitem object basis and the Department's desire to have a portion of the funds appropriated for teachers' salaries (under Sections II and 20 of the Minimum Foundation Program of Education Act) and for other certificated professional personnel (under Section 12 of said Act) transferred to the fund for payment of superintendents' salaries (authorized by Ga. Code Ann. 321006). In essence you desire to know whether there is any procedure under which such a transfer can be lawfully effectuated.

My answer is in the affirmative by virtue of that portion of Section 53 of the General Appropriations Act of 1967 which provides:

"All expenditures and appropriations made and authorized under this Act shall be according to the objects and for the programs and activities as specified in the Governor's recommendations contained in the Budget Report ... except as otherwise specified in this Act; provided however. the Director of the Budget is authorized to make internal transfers within a budget unit between objects and programs subject to the condition that no funds whatsoever shall be transferred for use in initiating or commencing any new program or activity not currently having an appropriation. nor which would require operating funds or capital outlay funds beyond the current biennium. and provided. further. that no funds whatsoever shall be transferred without the prior approval of at least eleven I 11) members of the Fiscal Affairs Sub-Committee of the Senate and House of Representatives in a meeting called to consider said transfers. This Section shall apply to all funds of each budget unit from whatever source derived . " Ga. Laws !967, pp. 41, 8!-82. (Emphasis added.)

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In reaching this conclusion l have not overlooked that portion of Section 38 of the Act which, after providing for the general appropriation for objects listed in the Budget Report, states:
"Funds appropriated for Section 12 of MFPE Act No. 523 shall be paid for salaries of certificated professional personnel serving as principals, instructional supervisors, visiting teachers, librarians, guidance counselors, and other certificated professional personnel." Ga. Laws, 1967, pp. 41, 64.
It is my opinion, however, that this language was inserted to further define the stated budget object "Section 12-0ther Certificated Professiona-l Personnel," and not intended as a limitation upon the above cited transfer provision which appears in a subsequent portion of the Appropriations Act.

OPINION 68-39 (Unofficial)

January 31, 1968

This is in reply to your letter wherein you ask if your automobile would be exempt from ad valorem taxation in Georgia.

You state that you are employed by the United States Government Office of Emergency Planning and have been living in this State since March I, 1967. You claim that you have maintained your legal residence in Florida and that you are a nonresident of Georgia. For the purposes of this opinion, it will be assumed that you are a non-resident of Georgia. However, it should be noted that all factors, not limited to those set forth in your letter, must be considered in deciding where a person IS domiciled.
Ga. Code Ann., 92-1503 provides, in part, 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 property. . . ."
Ga. Code Ann., 92-1506 provides, -in part, as follows:
" ... motor vehicles owned by non-residents shall be returned in the county where situated."

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Tangible personal property may acquire a tax situs in a state other than the owner's domicile. Where the property is located in a state on a more or less permanent basis as distinguished from a transient basis, such property has acquired a situs for taxation purposes irrespective of the owner's domicile. In this situation the property receives substantial protection from the state where located and not the owner's domicile. Curry v. McCanless, 307 U.S. 357, 83 L. Ed. 1339 (1938); Op. Att'y. Gen. 1962, pp. 485, 486; V S. Dicarlo Masonry Co .. Inc. v. Higgins, 234 P. 2d 640 (1955).
It seems that your motor vehicle is in this State for use here and is, in fact, used in much the same manner as other motor vehicles are used in Georgia. In summary, it is my opinion that your motor vehicle is taxable in Georgia.
In your letter you state that your contention that the motor vehicle would not be subject to ad valorem taxation in this State has been upheld by the courts. The cases you are apparently referring to did not involve tangible property.
You also ask whether it would be less complicated for you to purchase 1968 license plates in Florida.
Ga. Code Ann., 68-221 provides that motor vehicles owned by non-residents may be used and operated on the public streets and highways for a period of 30 days without having to obtain a license plate, provided the laws of such person's residence have been complied with. After the expiration of the 30 days, a nonresident would be required to obtain license plates in Georgia.

OPI~ION 68-40 (Unofficial)

January 31, 1968

This is in response to your letter with reference to the tragic death of Mr. Ben Strickland, Jr., the former principal of Leslie High School.

You state that Mr. Strickland had 16 months military service since 1945 for which he never claimed credit under the Teachers' Retirement System and 14 years, 5 months creditable service under the System. I assume Mr. Strickland had not attained the age of sixty years.

45
Your question, in essence, is whether this 16 months military service now can be added to his 14 years, 5 months service in order for his beneficiary to be eligible for monthly death benefits under the System.
OPINION
Mr. Strickland's 16 months military service cannot now be added to his 14 years, 5 months of service to give him the minimum 15 years creditable service at time of death necessary for his beneficiary to be eligible for a monthly death benefit under Ga. Code Ann. 32-2905(5).
DISCUSSION
Under the Teachers' Retirement System, credit shall be awarded to any person who was on active duty in the armed forces of the United States during World War I, World War II, the Korean War, or any period of national emergency, for up to a maximum of five (5) years military service performed after 1945, provided said person shall pay to the System certain specified sums of money. Ga. Code Ann. 32-2904(6)(a)(ii). The exact words of the statute, "provided said person shall pay," clearly are a reference to the person who was on active duty in the armed forces, the member of the System. The narrow question here presented is whether "said person" can be extended by judicial construction to include the member's beneficiary.
The case of Burks v. Board of Trustees of the Firemen's Pension Fund ofthe City of..-lt/anta, 214 Ga. 251 (1958), requires a negative answer to the question posed. In that case, the employee died before commencing to draw his pension. The pension laws in question provided that in case of the death of a "pensioner" his widow and children would draw his pension. In issue was whether the word "pensioner" could be construed to include an employee who was eligible to receive a pension as well as employees actually receiving pensions. The court acknowledged two rules of construction applicable to pension laws: First, such laws should be liberally construed in favor of the employee and his beneficiary. Second, the right to pension benefits depends upon the terms of the statute which creates the right. But the court held that rules of statutory construction did not apply because the word "pensioner" was unambiguous and required no construction. The court held:

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"It is a condition precedent to the right of a widow to a pension under the acts of 1924 and 1931 that her deceased husband shall have been a 'pensioner.' This court will not, under the guise of construction, revise or enlarge upon the clear provisions of statutes."
The word "person" likewise is unambiguous and not subject to construction. It is a condition precedent to the right of a beneficiary under the Teachers' Retirement System that the person who was on active military service apply for credit and make the required payments in accordance with Ga. Code Ann. 32-3904(6)(a)(ii).
I regret any hardship this opinion may create for the widow and children of Mr. Stickland, but personal feelings of compassion cannot be allowed to influence legal opinions.

OPINION 68-41 (Unofficial)

February I, 1968

You request an opinion from this office as to whether you are entitled to the Four Thousand Dollar ($4,000.00) increased homestead exemption provided for persons aged 65 or over. In support of your position you state that (I) you are married and your wife is employed, but the property in question is in your name only; and (2) that you receive as income the amount of approximately $150.00 per month as a retirement benefit, and a small social security check, which, together with the retirement check, amounts to approximately $200.00 per month.

You state further that you have been informed that you must include your wife's income with your own to determine whether your income exceeds $3,000.00 per year.
To answer your questions, I enclose a copy of an unofficial opinion rendered by the Attorney General dated July II, 1967, which opinion states that a wife's income should not be considered as part of her husband's income to determine whether his income exceeds the $3,000.00 limitation provided; and which opinion also deals with the question of property ownership between a husband and wife.

I would point out to you that in our opinion rendered by the

47
Attorney General to Mr. Hiram K. U ndercotler, State Revenue Commissioner, dated April 28, 1965, pp. 4, 5, the retirement check and social security check received by you have been held to constitute income for purposes of determining whether a taxpayer is eligible for the increased homestead exemption of $4,000.00.

OPINION 68-42 (Unofficial)

February l, 1968

This is in reply to your letter asking whether the transfer of timber is taxable under the provisions of Ga. Laws 1967, p. 798.

Section l of the Transfer Tax Act (Ga. Code Ann. 92-80 I) provides, in part, as follows:

"There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed.
"
In Foy v. Scott, 197 Ga. 138 (1943) at page 139 the court stated:
"Standing timber is realty. Code 85-20 l .. sale of standing timber must, therefore be in writing."

It is my opinion that the above Act imposes a tax on the transfer of standing timber. Further, the instrument attached to your letter transferred standing timber and such a transfer would be taxable.

OPINION 68-43 (Unofficial)

February 5, 1968

This is in reply to your letter asking for information regarding the election of County Commissioners in Jones County. As I understand the situation, the Commissioners of Jones County have heretofore been elected by selecting the three candidates receiving more votes than any of the other candidates and you

48
have been asked how much procedure is affected by the adoption of the Georgia Election Code, Ga. Code Ann. Title 34.
Examining the question abstractly and without regard to specific situations, it is immediately apparent that there are two provisions of the Election Code which may affect the manner of conducting elections in Jones County. Ga. Code Ann. 34-1002 provides, for instance, that a candidate seeking one of two or more public offices having the same title and to be filled at the same election by the same electors, must designate the specific office he is seeking by naming its incumbent or by giving other appropriate designation. Thus, it is no longer possible for several candidates to run for the three offices of Jones County Commissioner. Instead, each candidate must announce his candidacy for the specific office of Jones County Commissioner presently filled by a named incumbent.
Secondly, Ga. Code Ann. 34-1514 requires that no candidate shall be elected to public office unless such candidate receives a majority of the votes cast. Accordingly, if there are three or more candidates for any one of the three commissioners' offices in Jones County and none of them receives a majority of all the votes cast in the general election, it will be necessary to hold a runoff election between the two candidates receiving the highest number of votes cast pursuant to the provisions of Ga. Code Ann. 341514.

OPINION 68-44 (Unofficial)

February 6, 1968

You ask my opinion regarding the proper method by which the Republican Party of Henry County may nominate candidates for an office for which such party has not previously had a candidate.

Ga. Code Ann. 34-l001(c) provides that each candidate for public office shall be nominated by petition unless he is:

"(i) 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 of the United States; (ii) a nominee of a political party nominated in a primary held by such party;

49
(iii) the nominee of a political party for a public office when the prior nominee of such party for such office shall have received at least ten per cent of the total votes cast for candidates seeking such office in the last election held to fill same; (iv) seeking office in a special election; or (v) seeking, in a general election, a county or militia district office or membership in the House of Representatives of the General Assembly in a county where no political party has or will hold a primary for the nomination of any candidate for any such office to be filled in such general election."
If the Republican Party of Henry County did not at the last election have a candidate for the office to be filled, and absent the circumstances described in (iv) and (v) above, it is clear that said party may only nominate candidates for the office to be filled in the next general election by nomination petition or the holding of a primary election.

OPINION 68-45 (Unofficial)

February 6, 1968

This is in response to your request for advice upon the following question: Does the Model 2 I. B. M. Votomatic Machine comply with the voting laws of the State of Georgia, and in particular does it comply with the secrecy requirements of the laws?

Regarding your first inquiry, as to whether or not the vote recorder in question complies with the voting laws of the State, this is a matter for determination by the Secretary of State pursuant to Ga. Code Ann. 34-1219 and 34-1220, which determination we understand has been made by Mr. Fortson. In his August 7, 1967, letter of approval to the manufacturer, the Secretary of State pointed out that he was not approving the carrying case or stand.
Regarding your second inquiry, as to whether or not the subject vote recorder complies with the secrecy requirements of Georgia laws, I call your attention to Ga. Code Ann. 34-1220 (f) which requires that vote recorders permit voting in "absolute" secrecy.

Your further attention is called to Ga. Code Ann. 34708(a), which provides that: "The ordinary shall cause all rooms

50
used as polling places to be suitably provided with heat and light, and, in districts in which ballots are used, with a sufficient number of voting compartments or booths with proper supplies, in which electors may conveniently mark their ballots, with a curtain, screen or door in the upper part of the front of each compartment or booth so that in the marking thereof they may be screened from the observation of others." The word "ballots" is defined by Ga. Code Ann. 34-103 in such manner as to include "ballot cards" used with tabulating machines.
As the duty of equipping the polling places falls upon the ordinary, it would appear that he should be satisfied that the foregoing requirements are applicable and are met.

OPINION 68--46 (Unofficial)

February 6, 1968

You ask whether an Act (Ga. Laws 1967, p. 883; Ga. Code Ann. 23-1302) which provides for uniform standards for audits of municipalities and counties by certified public accountants requires the employment of only certified public accountants to audit county books.
Ga. Code Ann. 23-130 I authorizes county commissioners to employ an "expert accountant" to examine and report on the books of the county. (Ga. Laws 1901, p. 57). It should be noted that this law was adopted before the enactment of a procedure for the certification of public accountants. See Ga. Laws 1908, p. 86. Our courts have refused to equate expert accountant to certified public accountant. See Burke v. Wheeler Co., 54 Ga. App. 81 (1936); Young v. State, 25 Ga. App. 562 (1920). See also State v. Ward, 222 N.C. 316,22 S.E.2d 922 (1942).
It is clear that prior to the 1967 Act county commissioners could hire accountants which were not certified public accountants to audit county books. The 1967 Act did not purport to repeal or amend any provision of Ga. Code Ann. 23-1301. These two statutes are not in irreconcilable conflict and the 1967 Act did not in any manner repeal or affect the provisions found in Ga. Code Ann. 23-1301.
I must conclude that the county commissioners are authorized

51
to employ an accountant who is not a certified public accountant to audit county books.

OPINION 68-47 (Unofficial)

February 6, 1968

This is in reply to your letter asking for a letter with which you may advise county executive committee chairmen regarding the date for holding primary elections.

The Georgia Election Code, Ga. Code Ann. Title 34, applies to any general or special primary to nominate candidates for any Federal, State or county election (Ga. Code Ann. 34-102). The Election Code provides further that county and State officers shall be elected in the November election next preceding the expiration of their respective terms of office (Ga. Code Ann. 34-802). Moreover, whenever any political party shall hold a primary to nominate candidates for public office to be filled in the ensuing November election, the Code provides that such primary shall be held on the second Wednesday in September in each evennumbered year (Ga. Code Ann. 34-801). Accordingly, whenever a general primary is to be held, it should be set for the second Wednesday in September preceding the November general election.

OPINION 68-48 (Unofficial)

February 7, 1968

You ask whether it is the duty of the tax collector of Baldwin County, Georgia, to collect a registration fee required and set by the Commissioners of Roads and Revenues of such county pursuant to the authority of the constitutional amendment entitled "City of Milledgeville, Baldwin County Authority." (Ga. Laws 1964, Ex. Sess., pp. 382, 389, 390).
Tax collectors are charged with the duty to collect county taxes. Ga. Code Ann. 92-490 I (1). Clearly the purpose of this registration fee was to produce revenue and was therefore a county tax. Sprout v. South Bend, 277 U.S. 163, 169, 72 L.Ed. 833, 837 ( 1928).

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therefore conclude that it is the duty of the county tax collector to collect this tax.

OPINION 68-49 (Unofficial)

February 7, 1968

You request to be advised as to the interpretation of Ga. Code Ann. 69-903 in relation to the question of whether a U.S. highway is to be considered as "lands owned by the State of Georgia."

Upon consideration of Ga. Code Ann. 69-903 in conjunction with Ga. Code Ann. 69-902 it would be my interpretation that in order for a municipal corporation to annex property, at least one of the owners of the property to be annexed must have property which abuts directly on the municipal boundary, or which would otherwise abut directly on the municipal boundary except for the fact that the property is separated by a street, street right-of-way, creek, river, the right-of-way of a railroad or other public service corporation, lands owned by the city or some other political subdivision, or lands owned by the State of Georgia. It would be my further interpretation that right-of-way for a Stateaid road which is owned by the State of Georgia would qualify as lands owned by the State of Georgia.

I am not familiar with the circumstances of the ownership of the right-of-way for U.S. Highway No. 29. However, it has been my experience that most of the U.S. routes are directed over rightof-way acquired and owned by the State Highway Department of Georgia as a part of its State-aid system of roads.

OPINION 68-50

February 7, 1968

You request my opinion as to whether a Department under the Merit System must pay an employee his accumulated annual leave if he is ordered to active duty in the Armed Forces of the United States for an indeterminate period of time.
It is my opinion that, except in those cases where the employee resigns or requests annual leave, your question must be answered in the negative. Although the portion of the Rules and

53
Regulations of the State Personnel Board dealing in general with "leave of absence without pay" does provide that such leave can be granted only where the employee's accumulated annual leave has been exhausted, see Paragraph B.40 I, the subject of "military leave" is covered by a wholly different regulation, to-wit: Section B.500. Under this latter regulation an employee who is ordered to active duty in the Armed Forces is "entitled" to leave without pay for the period of such service, plus ninety calendar days, without any requirement that he first exhaust his accumulated annual leave.
It should be noted in this connection that the mere fact that the employee is "entitled" to leave without pay for the entire period of his military service does not mean that he must take it. "Entitle" implies a choice on the part of the one entitled. An employee called to active duty, if he so desires, may choose to resign in order to receive all accrued annual leave not in excess of thirty days, in accordance with Paragraph B.202. In so doing he would waive his reinstatement rights. The employee, on the other hand, may exercise his option to be placed immediately on leave without pay under Paragraph B.502, with the concomitant privileges of reinstatement allowed therein.
I might further point out that, to my way of thinking, nothing in the leave regulations prohibits a third alternative, to-wit: An employee may request that the Appointing Authority grant accumulated annual leave in accordance with Paragraph B.20 I. l f this annual leave does not interfere demonstrably with the efficient operation of the Department, it shall then be granted since the language of Paragraph B.20 I is otherwise mandatory. In my opinion, at the conclusion of such annual leave period, the employee could assume a leave without pay status for the remainder of the period to which he is entitled under Paragraph B.502.

OPINION 68-51 (Unofficial)

February 8, 1968

You have requested my unofficial opinion on whether the City of Milledgeville-Baldwin County Recreation Authority can require the tax collector to collect a local registration fee for

54
motor vehicles. This registration fee is authorized by a constitutional amendment creating the above-named Authority.
The City of Milledgeville- Baldwin County Recreation Authority was created by a local amendment to the Constitution of Georgia in 1964. Proposed by Ga. Laws 1964, Ex. Sess., p. 382; Ratified Nov. 3, 1964.
Paragraph "D" of the amendment provides that the governing authority of Baldwin County shall be authorized to require the annual registration of every motor vehicle in the county, to collect a fee in connection therewith and to deposit, after paying the costs of registering said motor vehicles, the remainder of the fees in a fund to be used by the Recreation Authority for the purposes provided by the amendment. In pertinent part, the governing authority is authorized to:
" . . . promulgate and prescribe the forms to be used and rules and regulations necessary to require the annual registration of motor vehicles as herein set out." Ga. Laws 1964, Ex. Sess., pp. 382, 390.
The duties of the tax collector are enumerated in Ga. Code Ann. 92-4901. After setting out with particularity certain of these duties, the law further requires the tax collector to:
"Perform all other duties that the law requires, and which necessarily under the law appertain to his office." Ga. Code Ann. 92-4901(12).
It is my personal opinion that the proper authorities, acting under a duly enacted rule or regulation, could require the tax collector to collect the registration fee authorized by the amendment. For our purposes, in the absence of any conflicting statute, a duty imposed by rule or regulation would be a duty "that the law requires" so as to bring it within the scope of the tax collector's office. Since the constitutional amendment gives the governing authority of Baldwin County the authority to require the registration fees, collect these fees and promulgate the necessary rules and regulations, the governing authority, in my opinion, can require the tax collector to collect the fees. Indeed, the tax collector is the logical choice to do this since he is by law made an agent of the State Revenue Commissioner to accept applications for State registration of motor vehicles, the attendant

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license fees and ad valorem taxes. Ga. Code Ann. 68-244 to 68-253.
My opinion is, of course, based on the assumption that there are no local laws contrary to the general laws which I have discussed. Your County Attorney would be the proper person to reassure you in this regard.

OPINION 68-52 (Unofficial)

February 8, 1968

This is in reply to your letter in regard to your client's interest in a bond which his mother posted with the Department of Public Safety for the benefit of Donald D. McKoy following accident case no. M-36, 705, Atlanta, Fulton County, Georgia, 12/26/61.

Your question is whether the adjudication in bankruptcy of Mr. Donald D. McKoy on December 24, 1964, would release him from the requisites of the Motor Vehicle Safety Responsibility Act and thereby release Mrs. Dougman's bond.

Ga. Code Ann. 92A-605(a) provides in part:

"An adjudication or discharge in bankruptcy shall not relieve the operator or owner from furnishing security as provided herein or from the other provisions of this Chapter."

The only interpretation that this Department has ever placed on the above-quoted provisions is that although an operator or owner is, subsequent to the accident in question, adjudicated a bankrupt, this does not relieve him from the requirements of the Motor Vehicle Safety Responsibility laws which provide for the furnishing of security.
Therefore, even though the operator in question, Donald D. McKoy, was adjudicated bankrupt, the bond which has been put up by Mrs. Doughman cannot be released.

OPINION 68-53

February 8, 1968

This is in response to your letter of February 6, 1968, requesting an official opinion on the following questions:

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I. whether or not a judge 01 Lhe superior court is entitled to count the months, days, and years he has served in the Armed Forces of the United States during World War II when computing his 19 years of service provided for in Ga. Code Ann. 24-2602(a)?"
2. "If such military service is entitled to be counted, what is the earliest time and minimum amount of service necessary in order to entitle such a judge to an appointment as judge emeritus pursuant to the provisions of Ga. Code Ann. Title 24, Chapter 26A?"
In answering these questions, it is, of course, assumed that the judge in question meets all other qualifications for appointment as a judge emeritus of the superior courts.
OPINION
A judge of the superior courts of the State of Georgia is entitled to count the days, months, and years he has served in the Armed Forces of the United States during World War II when computing his 19 years of service provided for in Ga. Code Ann. 24-2602(a).
In order to entitle such a judge to an appointment as judge emeritus pursuant to the provisions of Ga. Code Ann. Ch. 2426A, it is only necessary that he enter the 19th year of service, i.e., it is not necessary that he complete 19 years of service.
DISCUSSION
Ga. Code Ann. 24-2602(a) provides, in relevant part,
"Any judge of the superior court of the State of Georgia who shall be in at least his 19th year of service as a judge of the superior court of the State, . . . service in the armed forces of the United States occasioned by the National emergencies of World War I, World War II, or the Korean conflict, being allowable in computing such 19 years of service. . . ."
This provision is direct and unequivocal; therefore, it is not subject to construction and must be applied as written. Burks v. Board of Trustees, 214 Ga. 251 (1958). Since it refers to such military service without qualification, no limitation to only whole years of service exists and part years, i.e., months and days, as

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well as whole years, are includable in the computation. City of Macon v. Herrington, 198 Ga. 576, 589 (1944). Accord: Ops. Atty. Gen. 1957, p. 78.

OPI:\IION 68-54

February 8, 1968

You asked the question as to who is responsible for maintenance of bridges in the State of Georgia. Your primary concern seems to be for the maintenance of bridges over railroads. The question you asked resolves itself into two legal questions: (I) Who has the responsibility and duty for the maintenance of bridges as such is provided by the law of this State; and (2) Who is responsible for damages in the event persons are injured on a defective bridge?

Several provisions of the statutory law of this State shed some light on these questions. First, in relation to the responsibility for bridges over railroads, Ga. Code Ann. 95-1909 provides that the State Highway Department, in the case of State roads, is to maintain overpasses which have been constructed or substantially reconstructed since August 23, 1927. That same Section provides that the railroad companies are to maintain underpasses which have been constructed or substantially reconstructed since August 23, 1927. Such maintenance is provided to be at the expense of the Department or the railroad, as the case may be, and the term "overpass" is defined by Ga. Code Ann. 95-1901 as "A bridge and approaches thereto for carrying highway traffic over a railroad". "Underpass" is defined as "A bridge and approaches thereto for carrying a railroad over a highway or other public road. . . ." In addition, it is provided in Ga. Code Ann. 951909 that where an overpass on any county road is constructed with a floor of wood, it shall be the duty of the railroad or railroads to maintain such floor at their own expense. This Section, however, would appear to become ineffective in the event the county road is taken in as a part of the State-aid system.

Ga. Code Ann. 95-903 provides that all bridges or causeways over small watercourses, and causeways over swamps or lowlands, shall be made and kept in repair by hands subject to work on roads. However, this Section appears to apply to bridges, ferries and causeways which are permitted to be erected

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by county authorities under the provisions of Ga. Code Ann. Ch. 95-9. It is possible that this provision of the law may be construed to place the duties upon the State Highway Department of Georgia for maintenance of bridges or causeways on State-aid roads. However, in view of other provisions of the statutory law herein discussed, this prov1s1on seems to add little to the responsibility of the State Highway Department in the maintenance of bridges.
Ga. Code Ann. 95-1504 is to vest in the State Highway Department of Georgia the powers and duties to designate, improve, supervise, construct and maintain a system of State-aid roads. Construing this provision in conjunction with Ga. Code Ann. 95-170 I which creates a system of State-aid roads and provides that the same shall be designated, constructed, improved and maintained by the State through the State Highway Department and provides that the term "State-aid roads" includes State or interstate bridges and other subsidiary structures necessary or desirable in the construction of State roads, the conclusion is inescapable that at least on State-aid roads, the State Highway Department of Georgia has the clear statutory duty to maintain all bridges or other similar structures on Stateaid roads.
Ga. Code Ann. 95-1605 provides, of course, that the general duties and management and control of the State Highway Department, as well as the State Highway System of roads and bridges, is part of the duties of the State Highway Board.
Ga. Code Ann. 95-1715 provides that it is the duty of the State Highway Board to institute and carry out expedient methods for the maintenance, improvement and construction of bridges on the designated State-aid roads. This, of course, would include maintenance of paving on bridges which form a part of the State-aid road system.
Ga. Code Ann. 95-1001 provides in part that the county shall be primarily li-able for all injuries caused by reason of any defective bridge, whether. erected by contractors or county authorities. This Section should be construed together with the provisions of Ga. Code Ann. 95-1710. The latter provision provides that the State Highway Department shall defend all suits, or be responsible for all damages awarded in any court in this

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State against any county, under existing laws whenever the cause of action originates on highways, jurisdiction over which shall have been assumed by the State Highway Department. Case law has construed these two provisions to make the county primarily liable where injury occurs by virtue of a defective bridge on a road or highway over which the county has jurisdiction, and to make the Highway Department liable on a road over which it has jurisdiction.
In regard to the responsibility for maintenance of bridges constructed prior to 1927, Ga. Code Ann. 94-503 provides that all railroad companies shall keep ;n good order, at their expense, the public roads or private ways established pursuant to Jaw, where crossed by their several roads and build suitable bridges and maintain proper excavations or embankments, according to the spirit of the law. This Section seems to require any bridges built in order to allow a railroad and public road to cross to be maintained at the expense of the railroad company, if the bridge was constructed prior to 1927 and not substantially reconstructed since that date.
In relation to the responsibility for damage where the same occurs on an overpass or an underpass, it would appear that since 1927, under the provisions of Ga. Code Ann. 95-1909 the State Highway Department would be responsible for damages accruing on any overpass where a railroad is carried under the public highway, and that liability accrues under the provisions of Ga. Code Ann. 95-1001 and 95-1710. (See Gordon County v. Cochran, 103 Ga. App. 416 (1961).) The situation is somewhat more complex as regards overpasses and underpasses constructed prior to 1927. There is some authority to the effect that many bridges constructed prior to 1927, in order to allow a railroad to cross either over or under a public highway, is the responsibility of the railroad company, including responsibility for damages accruing as a result of a defective bridge. This position is substantiated by the case of Jackson V. Meriwether County, 54 Ga. App. 491 ( 1936), which held that the provisions of Ga. Code Ann. 95-1001 did not include bridges over railroad tracks, and the case of Central of Georgia Railway Company v. Keating. 177 Ga. 345 (1933), s.c. 45 Ga. App. 811 ( 1932), which held that for a railroad bridge constructed prior to 1927, even though the bridge was an overpass, the State Highway Department or county

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were not required to maintain the bridge. However, since these cases, Ga. Code Ann. 95-100 I was amended ( 1953) so that the definition of bridges and approaches specifically included overpasses over railroads. Hence, the responsibility of the State Highway Department of Georgia for bridges constructed prior to 1927, constituting overpasses over railroads, is not clear but the latest amendment to Ga. Code Ann. 95-100 I appears to place the responsibility for damages in such a case upon the State Highway Department of Georgia. Obviously concurrent with the responsibility for damages is the responsibility for maintenance.
In conclusion, it may be stated that at least in the case of bridges or similar structures, other than railroad structures, which are found to exist on the State-aid roads, the State Highway Department of Georgia has both the duty to maintain as well as the ultimate responsibility for damages where injury occurs as a result of a defective bridge. It would appear that where injury occurs as a result of a defective bridge which is on a county road not a part of the State-aid system, the county would be responsible for th.e damages. Likewise, it would appear that concurrent with the responsibility for damages in the latter case, would be the responsibility for maintenance.
In the case of railroad bridges, under the provision of Ga. Code Ann. 95-1909 quoted above, being a more specific law than the general provisions dealing with the maintenance of bridges on State-aid roads, the State Highway Department of Georgia would have the duty to maintain all overpasses and the railroads would have the duty to maintain all underpasses if such structures were completed since 1927. Concurrent with the Highway Department's responsibility for maintenance of overpasses would be the ultimate responsibility for damages in the case of defective bridges where the overpass is a part of the State-aid system.
In the case of overpasses and underpasses constructed prior to 1927, the state of the law is at this point-somewhat confused. However, it appears that under the 1953 amendment to Ga. Code Ann. 95-1001, the State Highway Department must be ultimately responsible for damages accruing as a result of a defective bridge where the damages accrue on an overpass which is a part of a highway over which the State Highway Department of Georgia has jurisdiction.

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OPI:'-IION 68---55 (Unofficial)

February 9, 1968

This is in response to your inquiry as to the legality of pinball machines, bowling machines, etc.
Pinball machines are not illegal per se under Georgia law. Heath Sales Company v. Bloodworth. 221 Ga. 567, 569 (1965). See also Childs v. The State. 70 Ga. App. 99 (1943). In some situations pinball machines are the subject of legitimate license taxes. See Ga. Laws 1962, p. 2370.
Although a pinball machine is not illegal per se, if it is a mchine in which the player inserts a coin of value and either loses his coin or wins money or something of value by chance, the machine then comes within the provisions of Ga. Code Ann. 26-6502 which provides: "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." Heath Sales Company v. Bloodworth, supra, at p. 570. Even if the pinball machine gives nothing more than a free game, it still comes within the provisions of Ga. Code Ann. 26-6502 as set out above.
Additionally, it should be noted that although pinball machines, ninepin machines, etc., are not illegal per se, one could be guilty of gambling if he should play and bet for money or other thing of value a pinball machine or ninepin machine. Ga. Code Ann. 26-6404.

OPINION 68---56 (Unofficial)

February 9, 1968

This responds to your letter requesting an opinion as to whether or not fire alarm dispatchers may be members of the Georgia Firemen's Pension Fund after the Fire Alarm Office of the City of Columbus is transferred from the City Fire Department to the City Electrical Department. You state that after this municipal reorganization is completed, the Fire Alarm Office "will function under" the Electrical Department, altnough the dispatchers "will be attached to the Fire Department (via) the Electrical

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Department." Apparently, the duties of the dispatchers will remain unchanged.
OPINION
The question you have posed is unfortunately not susceptible of a clear cut legal answer, and in view of the many uncertainties presented by your letter, I feel I am really not in a position to offer any advice other than to say that it might be desirable for the interested parties to seek a Declaratory Judgment as to: (I) Whether the fire alarm dispatchers will be "employed by" the City of Columbus Fire Department after the contemplated municipal reorganization, and (2) Whether the pension rights of persons presently employed as fire alarm dispatchers may be divested by the reorganization.
DISCUSSION
The questions presented by your letter essentially are ones of fact rather than of law. The Office of the Attorney General is neither authorized nor equipped to try or arbitrate questions of fact. Fact issues must be resolved by appropriate courts or agencies. If I may be permitted to steal a phrase from the Georgia Supreme Court, 'This is a clear case of needing 'the lights turned on' before stepping into darkness, and a Declaratory Judgment is the proper remedy." State Highway Department v. Williams Lumber Company, 222 Ga. 23, 24 (1966).
Participation in the Georgia Firemen's Pension Fund is limited to those employees of the City of Columbus who "are employed by a full-time fire department." Ga. Code Ann. 78-1001(1). Whether the subject fire alarm dispatchers will be "employed by" the City Fire Department or, instead, by the. City Electrical Department, after the contemplated municipal reorganization, is a question of fact which I am not in a position to resolve. Although the City may consider the dispatchers "employed by" one of those departments, a court would not be precluded from finding that they really are employed by the other department. Fluker v. City of Union Point, 132 Ga. 568 (1909). Only after a review of all facts related to their employment would a court determine that they are in fact employed by the one department rather than the other. Collier v. Elliott. 100 Ga. 363 (1897).
Since the dispatchers are claiming that the Board of Trustees

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of the Georgia Firemen's Pension Fund should pay them public money in the form of pension benefits, they must be able to demonstrate that they are "firemen" within the meaning of Ga. Code Ann. 78-1001(1). Freeney v. Geoghegan, 177 Ga. 142 (1933), Civil Service Board of Fulton County v. MacNeill, 201 Ga. 643 (1946), Cole v. Foster. 207 Ga. 416 (1950).
If the court determines that the dispatchers will not be "firemen" in that they will not be "employed by" the City of Columbus Fire Department after the contemplated reorganization, a legal question then arises as to whether the pension rights of persons presentiy employed as dispatchers may be divested by the reorganization.
In Georgia, the general rule is that rights granted by a pension statute which requires contributions by the employee "become vested in the fireman immediately upon any participation in active service while the statute is in effect, irrespective of whether at the time in question the fireman has completed sufficient length of service then to be eligible for retirement as a matter of right." Webb v. Whitley, 114 Ga. App. 153, 156-57 (1966). Once vested, these rights may not be divested by subsequent legislation. Bender v. Anglin, 207 Ga. 108 52 ARL2d 437,454 (1950).
The narrow legal question presented is whether Ga. Code Ann. 78-1010 so far modifies the general rule as to permit the rights of "firemen" under this particular pension act to be divested by their being transferred from the Fire Department of the City of Columbus to the Electrical Department of that city. Ga. Code Ann. 78-1010 provides:
"The pensions provided herein shall be subject to future legislative change or revision, and no member of the fund, or any persons, shall be deemed to have any vested right to any pensions provided herein."
In Pritchard v. Board of Commissioners of Peace Officers Annuity & Benefit Fund of Georgia. 211 Ga. 57 (1954), a provision substantially identical to that found in Ga. Code Ann. 78-1010 survived several constitutional attacks and was construed to preclude the operation of the general rule. The court held that the General Assembly was authorized to eliminate entirely certain benefits provided by the pension act there in

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question. Whether the court would be willing to apply this judicial exception to the general rule to the facts of the planned reorganization in Columbus is a legal question dependent upon factual issues which I am not in a position to resolve. Your letter provides no details as to how the reorganization will be consummated.
I do feel awkward about the fact that you will probably conclude that my reply merely raises complicated legal questions rather than answering the rather concise question posed by your letter. Lawyers often must weather such complaints. Suffice it to say, however, that the client who is informed that no advice is possible often is better advised than the client who is told that the uncertain really is certain.

OPINION 68-57

February 9, 1968

This is in reply to your request for my opinion on expenditures to obtain adequate water for the State Parks System. I have taken the liberty of paraphrasing your questions as follows:

I. May the Department of State Parks expend funds to obtain water service from a municipality?
2. If so, may the total cost of extending a pipeline from the limits of an existing distribution system be borne by the Department?

3. If the pipeline is installed by the municipality and becomes part of the municipal water system, may the Department pay a surcharge on the normal metered rate to cover the cost of the expended service?

In answer to your first question, Ga. Code Ann. 43-124(d) (Ga. Laws 1937, pp. 264, 270, as amended) authorizes the Department of State Parks:

"To make expenditures with tpe approval of the Commissioner of Conservation from 1available funds for the care, supervision, improvement and development of the State park system."

The installation of water service at a State park would constitute an "improvement" within the meaning of the above

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quoted Code section for which the Department may expend funds, provided the approval of Governor Maddox, as the ex officio Commissioner of Conservation, is obtained.
Responding to your second question, I will assume that the pipeline, once installed, will belong to the Department. I am of the opinion that the Department may bear the expense of extending a pipeline from the limits of an existing distribution system to the park itself, provided the necessary appurtenant easements are secured therefor.
In Mayor & C. of Gainesville v. Dunlap, 147 Ga. 344 (1917), it was held that a water main laid through the lands of others under a lease or license, not being for the improvement of the realty, was a trade fixture and removable at any time by the city without consent of the landowners. Based on the rationale of the Gainesville decision, I am of the opinion that it will not be necessary for the Department of State Parks to obtain fee simple title to the lands through which the pipes will be laid since the water main would not constitute an improvement to the realty, but a trade fixture used in the conduct of the park and, as such, removable at the option of the Department.
Addressing myself to your final question, I find that a difference in conditions of service authorizes a municipality to charge differing amounts for water service, provided the difference in amount is based upon and has some reasonable relation to the difference of the rendered service and is not so great as to produce unjust discrimination. Jarrett v. City of Boston, 209 Ga. 530 (1953).
Therefore, if the proposed surcharge bears a reasonable relationship to the nature of the service, there is no prohibition to its imposition by the municipality, nor am I aware of any statute or constitutional provision which would prevent its acceptance by the Department.

OPINION 68-58

February 12, 1968

You requested that I render an official opinion on the following questions:
I. Does a conflict of interest exist if a member of the State Board of Registration for Professional Engineers and Land

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Surveyors accepts an engineering assignment from the State or any department or agency thereof; and
2. Would such a conflict exist in a situation in which a member of said Board is also a full-time employee of the State?
I.
Answering the first question posed, I refer to Ga. Laws 1956, pp. 60-61, 2, which provides:
"Section 2. No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon."
Also relevant to the question is a 1959 Act (Ga. Laws 1959, pp. 34, 35). This Act, which is penal in nature, provides in Section 2:
"Section 2. Interested persons acting as government agents. Whoever being an officer,agent, or member of, or interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, and who is an officer, agent or employee of the State of Georgia, or any agency thereof, or a member of any board, bureau or commission of the State of Georgia, or any agency thereof, or a member of, or employed by, any authority created by the laws of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, shall not for himself or in behalf of any of the aforesaid business entities sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof. Any violation of this section shall constitute a felony and any person convicted under the provisions of this law shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years."

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Because the expressed intention of the legislature in passing the 1959 Act was that it provide additional penalties for certain criminal acts rather than repeal any existing valid statute (Ga. Laws 1959, p. 34, 27), the 1956 Act must be construed together with the 1959 Act. Both Acts clearly refer to members of the State boards and are applicable to a member of the State Board for Registration of Engineers and Land Surveyors.
It is noted that the portion of the 1956 Act quoted from above speaks in terms of "goods or services." The 1959 Act, however, conspicuously excludes any mention of the word "services." Additionally, the 1956 Act does not absolutely prohibit the sale of goods or services to the State by a member of a State Board, but provides only that such sale may not be effectuated ..except ajter competitive bid thereon." (Emphasis added.) whereas the 1959 Act contains no such qualifying language.
Therefore, construing the two Acts together, as applied to a member of your Board "accepting an engineering assignment from an agency of the State," my opinion relative to your first question as hereinabove stated is that:
I. A member of a State Board such as the State Board of Registration for Professional Engineers and Land Surveyors, in behalf of himself or in behalf of any of the business entities specified in Ga. Code Ann. 26-5004, Ga. Laws 1959, pp. 34, 35, cannot legally "sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia or any agency thereof." This is an all inclusive prohibition with no limitation or qualification thereon.
2. A member of a State Board such as the State Board of Registration for Professional Engineers and Land Surveyors can legally sell services to the State, but only after competitive bid thereon. Ga. Laws 1956, pp. 60, 61. With reference to your question relative to "accepting an engineering assignment from the State," it is my opinion that same would come within the purview of such "services," and if such an engineering assignment were done for pecuniary gain to the person accepting same, it would be improper and illegal for a member of said Board or a similar Board to accept it unless awarded on a competitive bid basis.

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II.
In the interest of clarity, I shall restate your second question which I understand to be this: Would the same conflict of interest exist if a member gJ said Board who is also employed by the State directly accepted such an engineering assignment from an agency of the State?
Ga. Laws 1956, pp. 60, 61, makes it unlawful for any full-time State employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services. when such purchase or sale would benefit or be likely to benefit such employee. Ga. Laws 1959, pp. 34, 35, 2, makes it a felony for an officer, agent or employee of the State of Georgia or any agency thereof, on behalf of himself or in behalf of any of the business entities specified in Section 2 of the Act, to sell any goods, wares or merchandise, personal property or other chattels to the State or any agency thereof.
Therefore, it is my opinion that a Board member who is also a full-time employee of the State cannot legally sell goods or services to the State under any circumstances, if the acceptance of same would benefit or be likely to benefit such employee. As stated in paragraph one above, in my opinion this would include the acceptance of an engineering assignment.

OPINION 68-59 (Unofficial)

February 13, 1968

You asked if taxpaid crowns for malt beverages are lost or damaged by a common carrier in interstate commerce is your Company responsible for the tax value.

The excise tax on malt beverages is collected by the use of taxpaid crowns on all bottles or cans containing such malt beverages. Ga. Code Ann. 58-735. Pursuant to this law the State Revenue Commissioner has authorized certain companies to manufacture and furnish breweries with these crowns. Yours is one company with this authority. The crowns are shipped by your Company to the brewer only after the brewer has paid the State of Georgia the excise tax reflected on the crowns.
This taxing method is also used to collect excise taxes on cigarettes and on intoxicating liquors. Your Company's liability

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to a brewer for lost or damaged crowns shipped to such brewer would be determined by your contract.However, the State could authorize additional shipments of taxpaid crowns only upon the payment of additional tax by the brewer. Refunds of these taxes could be made to the brewers only in accordance with some provision of the law. See Rule of the Department of Revenue, Section 560-8-2-.04.

OPINION 68-60 (Unofficial)

February 13, 1968

You wrote regarding the Junkyard Control Act.

I can find no language in the Act pertaining to "margin of the Entrance"; however, Section 4 of the Junkyard Control Act (Ga. Laws 1967, Vol. I, pp. 433, 435), provides:

"Section 4. Conditions for Operations of Junkyards.-No person shall establish, operate, or maintain a junkyard, any portion of which is within one thousand feet of the nearest edge of the right of way of any Interstate or Federal-Aid Primary highway, except the following:" (Emphasis added.)
In my judgment this Section is self-explanatory and means that any portion of a junkyard within 1,000 feet of any Interstate or Federal-aid primary highway shall not be permitted.

You next inquire as to how you may confirm that State Route 33 is a Federal-aid primary highway. I believe you will need a certified copy of an Order from the Highway Department with map attached showing that this portion of the road in Colquitt County is on the State-Aid System. I am asking Mr. Leland Veal, Planning Engineer, by copy of this letter, to furnish you such information and to have same certified by the Secretary of the Highway Department, Mr. W. M. Williams.

Your next question deals with Section 11 of the Act pertaining to whether a junkyard which comes into existence after the effective date of this Act can be abated as a public and private nuisance and you ask the question what is meant by the words, "cannot be made to conform." In my judgment, your question is answered in Sections 4 and 5 of the Act. I specifically call your attention to Section 4, Subsections (a), (b), (c), and (d), which provide:

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"(a) Those which are screened by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main-traveled way of the systems, or otherwise removed from sight.
"(b) Those located within areas which are zoned for industrial use under authority of Ia w.
"(c) Those located within unzoned industrial areas, which areas shall be determined from actual land uses and defined by regulations to be promulgated by the Director of Georgia State Highway Department.
"(d) Those which are not visible from the main-traveled way of the system."
Therefore, if the junkyard does not fall within one or more of the provisions in Section 4 above quoted, the owners or operators would be subject to prosecution and the other provisions pertaining to the removal of junkyards which are specified in this Act.
You next ask what is necessary for the Director to take the required steps to remove the junkyard if the owners do not conform to the Act. The answer to this question is found in Section II and would, of course, permit the Highway Department to file suit to abate the junkyard as a public and private nuisance. However, in my judgment, this would not be nearly as effective as the criminal penalty because a suit of this type could last for an indefinite period of time without any affirmative relief.
Your final question deals with Section 15 of the Act which provides that each day's presence of the junkyard within the prohibited distance shall be a separate offense. You ask the question as to whether the trial judge has the duty to treat separate offenses for each day after the time of December 20, 1967, which is the date your prosecuting witness says the owners violated the Act. This would depend entirely upon how you drew your accusation. You could certainly treat each day as a separate offense up to the time the accusation was drawn. You could not, of course, add additional days from the time the accusation was drawn until the date of the trial.
We realize that this is a new law and contains provisions with which you are not familiar. We are, therefore, assigning Mr. John

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A. Sligh, Jr., Assistant Attorney General, to assist you in any way that you may desire. The Attorney General's Office, as you know, is not permitted to actually prosecute in these cases. Therefore, our services must be limited to consultation, research and advice. We wish to clearly state, however,that we stand ready, willing and able to do everything within our power to assist in removing this junkyard.

OPINION 68-61

February l3, 1968

You inquire as to the mmtmum amount of securities which must be pledged by State depositories to secure funds on deposit for a period of less than 30 days.

Ga. Code Ann., 100-104 provides, in part, as follows:

"... In determining the amount of the bond to be given by a depository under this Section, the Governor shall so fix the same as to make it not less than the amount of money to be instrusted [sic] to said depository, and in no case shall a larger amount of money be deposited in any depository than the amount ofthe bond, . .."(Emphasis added.)
Ga. Code Ann., 100-108 provides, in part, as follows:

"The Treasurer of this State shall not deposit at any one time, or have on deposit at any one time in any one of the depositories for a longer time than 10 days, a sum of money belonging to this State that exceeds the bond given by said depository to the State. . . . The bond to be given by State Depositories . . . shall be a surety bond . . . in a sum equal to the amount of money to be deposited with such depository: Provided, that in lieu of such surety bond the State depository may deposit with the State Treasurer bonds of the United States or of this State, or bonds of the counties and municipalities of this State, ... A state depository may secure deposits made with it in part by a surety bond and in part by a deposit of any or all of the bonds mentioned, or by either method .... and the guarantee of the Federal Deposit Insurance Corporation shall be accepted as collateral by the State Treasurer to cover State funds on deposit in State depositories to the extent authorized by the

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Federal law governing the Federal ueposit Insurance Corporation."
Ga. Code Ann. 100-105 provides, in part, as follows:
"The State Depository Board shall be authorized to determine, from time to time, in respect to all State funds, whether deposited by the State Treasurer or any other department or agency of the State government, ...
"Provided that all State Depositories shall give security for State Deposits as now required by law."
In view of the above Code sections, it is my opinion that State depositories must provide security in the form of a bond or a bond and certain enumerated securities in a sum equal to the amount of money to be deposited with such depository. However, it is noted that the guarantee of the Federal Deposit Insurance Corporation shall be accepted as collateral to the extent authorized by Federal law.

OPINION 68--62

February 13, 1968

You pose various questions relating to the operation of the socalled "Medicaid Program" in Georgia. This federally assisted program, authorized under Title XI X of the Social Security Amendments of 1965 (79 Stat. 343 et seq.; 42 U.S.C. 1396) is designed to provide for the cost of medical treatment for the aged and certain other individuals. Among other things, the Act provides for assistance to eligible persons in connection with the expenses they incur for "prescribed drugs." In connection with the administration of the Act in Georgia by the Department of Public Health you desire to know:

(l) Which practitioners of the healing arts are authorized under Georgia law to prescribe those drugs which are obtainable only by prescription?

(2) Are there limitations as to the kind or amount of drugs which may be prescribed or in the purposes for which the drug may be prescribed in any of these professions?

(3) In the event that question (2) is answered in the affirmative may the Department of Public Health, in its

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administration of the "Medicaid Program" in Georgia, pay for the filling of a prescription for a drug outside these limitations?
(4) May the Department of Public Health pay for hospital costs authorized under the program if in the course of hospital care services were provided by a practitioner of the healing arts beyond the scope of his license?
At the outset of my reply I wish to apologize for the delay in this response but would say that the questions you have posed raise exceedingly difficult questions which have required a great deal of legal research and consideration. My opinion regarding the same and the reasons therefor are as follows:
OPINION
(I) There would appear to be no doubt as to the legal authority of medical practitioners, dentists, podiatrists (chiropodists) and, in the prospective sense nurses, to prescribe such drugs as are generally accepted as being necessary or incidental to the practice of their particular branches of the healing arts. With respect to osteopaths, the situation is wholly unclear and virtually cries out for legislative clarification. Osteopaths are prohibited by statute from prescribing narcotic drugs for purposes other than the alleviation of pain. While the statutory silence respecting their prescription of other (i.e., nonnarcotic) drugs would logically seem to imply that, like dentists, they are authorized to prescribe such drugs as are generally accepted as being necessary or incidental to the practice of osteopathy, the picture is clouded due to certain judicial decisions rendered some years ago when this branch of the healing arts was ordinarily thought of as being confined to treatment by means of manipulations applied to the body structure and not, as it is today, thought of as encompassing surgery, obstetrics, etc., as well as the prescription of drugs necessary and incidental to the practice of the Art. Whether these older decisions would be followed today, of course, is highly questionable.
(2) As indicated in my answer to question (I), practitioners of the healing arts, in prescribing drugs, would be authorized to prescribe only those drugs which at the time of the prescription would be considered as being necessary or incidental to the proper practice of their particular branches of the healing arts.

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(3) As I see it, enforcement of the prohibitions against any "unauthorized" prescription of drugs by a practitioner of the healing arts should be by an action directly against the offending practitioner. In view of the clear intendment of the Social Security Amendments authorizing "medicaid" to give financial assistance to the aged and other eligible recipients, I am of the opinion that it would be inconsistent with the purpose of the Act to penalize the elderly recipient and/ or the druggist where these parties, who can hardly be expected to have knowledge of the intricacies of the nebulous law in the area, have acted in good faith in filling a prescription. Bills for the filling of prescriptions which are submitted by a druggist in good faith under the "Medicaid Program" should be paid by the Department of Public Health.
(4) My reply to your fourth question would be the same as the above answer to question (3).
DISCUSSION
(I) The laws of Georgia pertaining to "Medical Practitioners" and the practice of medicine are so broad and inclusive as to cover the healing arts in their totality. Ga. Code Ann. 84-90 I declares in part:
"The terms 'practice of medicine,' 'to practice medicine,' 'practicing medicine,' and 'practice medicine,' as used in this Chapter, are hereby defined to mean holding one's self out to the public as being engaged in the diagnosis or treatment of disease, defects or injuries to human beings, or the suggestion, recommendation or prescribing of any form of treatment for the intended palliation, relief or cure of any physical, mental or functional ailment or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift or compensation whatsoever . . ."
The "practice of medicine," as so defined, by a person unlicensed by the provisions of Ga. Code Ann. Ch. 84-9 pertaining to "Medical Practitioners" is prohibited and made a misdemeanor. See Ga. Code Ann. 84-906, 84-9914.
Quite obviously this broad language, taken by itself, would cover all branches of the healing arts and no dentist, nurse, optometrist, physical therapist, applied psychologist, etc., could practice their profession unless licensed as a medical doctor pursuant to Ga. Code Ann. Ch. 84-9. But such is not, of course,

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the case. As pointed out in Georgia Association of Osteopathic Physicians and Surgeons v. Allen, 31 F. Supp. 206, 211 (M.D. Ga., 1940), it was the intention of the General Assembly:
" ... to define the words 'practicing medicine' so as to include every branch of the healing art and to require a license from the Medical Board ... and ... that the definition should from time to time be limited by excluding from it any branch which had been or might later be expressly defined and authorized by law to practice some other branch of the healing art."
The General Assembly has from time to time exempted the practice of various professions of the healing arts from the purview of Ga. Code Ann. Ch. 84-9. In many instances the legislation authorizing the exception and separate licensing of such other healing arts profession has expressly provided that such other branch shall not be authorized to prescribe drugs. Chiropractors (Ga. Code Ann. 84-509), optometrists (Ga. Code Ann. 84-1101), physical therapists (Ga. Code Ann. 84-3001), naturopaths (Ga. Code Ann. 84-2901, 84-2916) and licensed applied psychologists (Ga. Code Ann. 84-310 I) are so prohibited from prescribing drugs.
In other situations the statutory provisions exempting and separately licensing other branches of the healing arts are wholly silent as to the authority to prescribe drugs. Such is the case, for example, regarding dentists. But as I see it, the position that such statutory silence means that the practitioner cannot prescribe any drugs at all would be wholly without merit. To me it would be unthinkable that the General Assembly would tell an individual that he could be licensed to practice dentistry but could not use the best techniques or even necessary techniques to function according to the most advanced knowledge in the art. To my way of thinking, the statutory silence means that the dentist is at the very least authorized to prescribe such drugs as are, at the time of the prescription, generally accepted as being necessary or incidental to his practice of dentistry, which is defined by Ga. Code Ann. 84-70 I as including:
"Operations or parts of operations of any kind in the treatment of diseases or lesions of the human mouth, teeth, gums or jaws ..."

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Indeed the question is probably academic respecting dentists. As stated by the Supreme Court of Georgia in Rivers v. Atlanta Southern Dental College, 187 Ga. 720, 722 (1939):
"The object of dental practice is to accomplish results which may be done by skillful service alone ... or by skilful service and the furnishing of material adopted to the particular case. . . . This definition [of dentistry under Ga. Code Ann. 84-701] literally refers to service alone. But what 'service' would embrace must be determined in connection with incidental things convenient or necessary to rendition of the service . . . ."
In my opinion the same reasoning would apply to the question of the authority of podiatrists (chiropodists) (with the exception of general anesthetics which are expressly prohibited to this profession by Ga. Code Ann. 84-60 I) and nurses (to the extent that the prescribing of drugs is or may in the future become generally accepted as necessary or incidental to the practice of nursing).
The question of the authority of osteopaths to prescribe drugs poses far more difficult problems. With respect to narcotic drugs they are expressly authorized to prescribe the same for the purpose of alleviating pain (but not for any other purpose). Ga. Code Ann. 84-1209, 79A-806. But as in the case of dentists, the licensing provisions respecting the practice of osteopathy are wholly silent with respect to other (i.e., non-narcotic) drugs. Ordinarily logic would clearly seem to dictate that such statutory silence means that osteopaths may prescribe such drugs as are generally accepted as being necessary or incidental to the practice of osteopathy in accordance with the most advanced knowledge of the art. This would especially seem to be true in view of the forward-looking definition regarding osteopathy set forth in Ga. Code Ann. 84-1209. This section provides that:
'The license provided for in this Chapter [Osteopaths] shall authorize the holder to practice osteopathy as taught and practiced in the legally incorporated and reputable colleges of Osteopathy." (Emphasis added.)
As in the case of dentists, I find it difficult to attribute an intention to the General Assembly of permitting a person to be

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licensed as an osteopath and then denying him the right to use the most modern techniques available in this branch of the healing arts. If anything, the above statute would seem to command just the opposite.
The great difficulty comes in through "history" and several court decisions rendered some years ago when the practice of osteopathy was considered to be something quite different from what it is thought of today. Originally osteopathy was considered to be a branch of the healing arts consisting solely of the treatment of human disease and afflictions by kneading and rubbing the body, manipulating nerve centers, particularly those along the spine, and otherwise limiting itself to non-drug and nonsurgical treatment. See 70 C.J.S., Physicians and Surgeons, I, p. 812. Some early statutes of this State refer to it as a "nondruggiving school of medical practice," see Ga. Code Ann. 849918, 84-9919, but these statutes shed little light on the problem at hand inasmuch as they appear to be descriptive rather than designed as a prohibition. In Georgia Association of Osteopathic Physicians and Surgeons v. Allen, 31 F. Supp. 206 (M.D. Ga., 1940), the United States District Court, in holding that an ostheopath was not (at that time) authorized to use narcotic drugs, stated as dicta that:
"Osteopaths, therefore ... may treat sick and injured human beings, [but] are not authorized to use drugs ..." Id. at p. 211.
Similarly, in Mabry v. State Board of Examiners in Optometry, 190 Ga. 751 (1940), the Supreme Court of Georgia cited the foregoing decision with approval, and in holding that an individual licensed as an osteopath could not practice optometry again in the form of dicta referred to osteopathy as a non-druggiving branch of the healing arts.
But it is significant that the last mentioned decision expressly noted that as then defined, osteopathy did not
" ... teach surgery, bacteriology, materia medica, or therapeutics." Id. at p. 756.
It is obvious to all that the osteopathy today is something quite different. The "legally incorporated and reputable colleges of osteopathy" (referred to in defining the authority of osteopaths

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in Ga. Code Ann. 84-1209) teach, inter alia, biochemistry, microbiology, pharmacology, medicine, pathology, obstetrics, roentgenology, and surgery. Moreover, it is well known to all that osteopaths, in fact and practice, do perform surgery and prescribe drugs today in Georgia as well as in the various other States. In view of the broadness of the authority of osteopaths under Ga. Code Ann. 84-1209, the absence of any express statutory prohibition regarding the prescription of drugs by osteopaths, as well as the illogic of the view that this branch of the healing arts is permitted to prescribe narcotic drugs but not any less dangerous non-narcotic drugs, I think it highly questionable, to say the least, whether a court today would follow the dicta contained in the older cases above referred to.
In reaching the conclusion that the question is open and virtually cries out for legislative clarification, I do not overlook the opinion rendered by this office in 1948 (Ops. Atty. Gen. 194849, p. 329), which held that osteopaths could not prescribe any drugs other than narcotics for the alleviation of pain. But this opinion is based upon a premise which upon reconsideration I find to be erroneous. In that opinion the conclusion was based upon the theory that inasmuch as the statute (i.e., Ga. Code Ann. 84-1209) authorizing an osteopath to practice osteopathy "as taught and practiced in the legally incorporated and reputable colleges of osteopathy" was enacted in 1908, the quoted phrase means as taught in 1908. Upon reconsideration I think it would be quite incredible to attribute an intention to the General Assembly of having authorized the practice of osteopathy yet requiring that its practice be forever frozen to the knowledge of the Art as it existed in 1908. We do not restrict medical doctors to the use of leeches and bloodletting to cure circulatory ailments. I think public policy as well as the intendment of the General Assembly dictates that osteopathy as well as all other branches of the healing arts be practiced according to the most advanced knowledge available and not as practiced in 1908.
(2) The answer to your second question would seem to be implicit in my reply to your initial inquiry. The inherent limitation, in the absence of any clear and unambiguous statutory command to the contrary, is to those drugs which are generally accepted as being necessary or incidental to the proper practice of the particular branch of the healing art involved.

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(3) In answer to your third question I note that there are various remedies under existing statutes of the State of Georgia where a practitioner of the healing arts is engaged in the unauthorized prescription of drugs. Such remedies could include revocation of license, injunction, and in most instances, criminal proceedings. In view of the fact that the clear purpose of the 1965 Social Security mendments pertaining to "medicaid" is to render financial assistance to elderly persons and other unfortunates made eligible for such assistance under said amendments, see 42 U .S.C. 1396, et seq. I can see no basis for penalizing such individuals who in good faith have a prescription filled. It would be harsh indeed to require such individuals to have a detailed knowledge of what the law is in the area, particularly in view of the various legal uncertainties discussed herein. There is nothing contained in Georgia's 1967 Drug Act, Ga. Laws 1967, pp. 296, et seq. (Ga. Code Ann. 79A-IOI et seq.) which would indicate that a druggist acting in good faith would or should be in any different position. The proper method enforcing prohibitions against any "unauthorized" prescription of drugs would in my opinion be a proceeding directly against the offending practitioner, and bills submitted under the "Medicaid Program" in good faith should be paid by the Department of Public Health.
(4) My reply to your fourth question would in my opinion be the same as my answer to the third.

OPINION 68-63 (Unofficial)

February 14, 1968

You ask whether it would be legal to establish two polling places in one election district and, if so, whether such change would be governed by Ga. Code Ann. 34-705.
An election district is a district within which all electors vote at one polling place. Ga. Code Ann. 34-103(f). Similarly, Ga. Code Ann. 34-705 provides only that the ordinary fix or change the polling place within any election district. Accordingly, I do not believe that two or more polling places within one election district would be authorized by the Georgia Election Code and that the proper solution to your problem would be the

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creation of additional election districts pursuant to Ga. Code Ann. 32-702, 32-703 and 32-704.

OPINION 68-64

February 14, 1968

You have requested my official opinion as to the taxability, under the Georgia Income Tax Law, of the income received by the Industrial Development Corporation in the County of Telfair and the interest income received by the holders of the bonds issued by this Corporation.

This is a nonprofit corporation created by the Superior Court of Telfair County, as provided by the 1938 Corporation Act. (Ga. Code Ann., 22-1881). The purpose of the Corporation, as recited in its charter, is to " . . . stimulate the promotion of industrial development in Telfair County, Georgia . . . ."

To accomplish its purpose the Corporation is empowered to acquire a manufacturing plant and related facilities and by lease or otherwise to make the property available to an industrial operator.

The Corporation has all of the routine corporate powers. The charter provides that no distribution of the corporate assets or profits shall ever be made to any member, director or officer. The charter also provides that the County of Telfair may, at any time acquire an option to purchase the corporate assets. The charter provides that upon dissolution all of the corporate assets remaining after the payment of debts shall be transferred by gift to the County of Telfair. It is specifically provided that these provisions dealing with the corporate assets may not be altered or changed.

The Code provides that charity involves the promotion of human civilization. Ga. Code Ann. 108-203 of the Ga. Code of 1933. The Code also provides that gifts to the State or a political subdivision for any public purpose shall be charitable. Ga. Code Ann. 108-210.
Our courts have recognized that charity is wider than the mere relief of poverty or distress and that the term includes any legitimate activity for the promotion and improvement of the happiness of mankind. Houston v. Mills Memorial Home. Inc., 202 Ga. 540, 545 (1947).

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The courts have held that an authority, created by constitutional amendment, for the limited purpose of ". assisting, promoting and encouraging the location of new industries . . . ." is a charitable public purpose. Smith v. State of Georgia, 217 Ga. 94 (1961 ); Smith v. State of Georgia, 222 Ga. 552 (1966).
The income received by Foundations organized and operated exclusively for charitable purposes, no part of the net earnings of which inures to the benefit of any private stockholder or individual, is exempt under the Income Tax Law by Ga. Code Ann. 92-3105(c).
The income of organizations not organized for profit but operated exclusively for the promotion of social welfare is exempt under the Income Tax Law by Ga. Code Ann. 92-3105(e).
Both of these exemptions are limited, however, and are denied if the organization engages, either directly or indirectly, in competitive commerce with private or public corporations, individuals or associations who are not so exempt. Ga. Code Ann. 92-3105(m).
I conclude that the stated purpose of the Industrial Development Corporation in the County of Telfair, Georgia, is a charitable one for the promotion of social welfare and that the income received by this organization is exempt under subparagraphs (c) and (e) of Ga. Code Ann. 92-3105 (c) and (e) provided that the Corporation does not engage in competitive commerce with private or public corporations, individuals, partnerships or associations not so exempt. The Internal Revenue Service has also ruled that the corporation's income is exempt under the Federal Income Tax Law.
This corporation is not a political subdivision of the State of Georgia. Richmond County Hospital Authority v. McLain, 112 Ga. App. 209 ( 1965). Therefore, the interest income received from the corporation by the holders of the bonds of the Corporation is not exempt under Ga. Code Ann. 92-3107 (b )(5) or any other section of the Income Tax Act. The ruling of the Internal Revenue Service that such income is exempt under the Federal Income Tax Law is not controlling when applying the exemption provisions of the Georgia Income Tax Act.

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I he corporation has acknowledged that it claims no exemption from ad valorem tax and this opinion is limited to exemptions under the Income Tax Act.

OPINION 68--65

February 14, 1968

This is in reply to your letter wherein you ask (I) whether transfers of real property from local boards of education to the Georgia Education Authority (Schools) are subject to the State documentary tax (Ga. Laws 1967, p. 788), and if so (2) on what is the amount of the tax based?

In answer to your first question it is necessary to determine the nature of the instrumentalities involved, since there is no question but that the Act applies to conveyances between private parties. Here we have a political subdivision as the transferor. (Towns v. Suttles. 208 Ga. 838 (1952)). The transfer tax is imposed primarily on the transferor and secondarily on the transferee.

The general rule regarding taxation of political subdivisions is "that public property of the State and its political subdivisions is not subject to taxation under general constitutional and statutory provisions providing that all property is taxable . . . [and] public property is always presumed to be exempt from the operation of general tax laws, because it is reasonable to suppose that it was not within the intent of the legislature to make public property subject to them . . . ." Sloan v. Polk County, 70 Ga. App. 707 (1944). See also Wright v. Fulton County, 169 Ga. 354 (1929).
The transfer tax involved here is a general statute imposing a tax on "each deed, instrument or other writing by which land . . . sold shall be . . . conveyed," (Ga. Laws 1967, p. 788, I) and the Act does not specifically impose the tax on transactions in which a political subdivision is a party. Accordingly where a political subdivision is a party, it is not subject to the transfer tax. Wright v. Fulton County, supra, at p. 357. Thus the transferor is not subject to the tax on the transaction enumerated by you.

On January 30, 1968, this office rendered Opinion 68-37, which stated that where the party primarily liable for the tax is not subject to it, the tax cannot be imposed on the party secondarily liable. Accordingly, the transactions enumerated by you are not subject to the transfer tax.

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OPINION 68-66 (Unofficial)

February 14, 1968

You wrote regarding the time in which candidates may qualify for a general primary.

The Georgia Election Code provides that in the case of a general primary, the candidates shall be allowed to qualify at dates fixed by the party so long as such dates are at least 90 days and no more than 135 days prior to the primary. Ga. Code Ann. 34-1006.

The general primary is held on the second Wednesday of September in each even-numbered year. Ga. Code Ann. 3480 I. Accordingly, the primary will be held this year on September 11. Computing the time in accordance with Ga. Code Ann. 34105 which requires the full number of days be counted in determining a deadline such as this, I find that candidates may qualify for the primary at any time during the period April 29, 1968, through June 12, 1968, inclusive.

OPINION 68-67 (Unofficial)

February 15, 1968

You ask whether the following transactions are subject to the Georgia Real Estate Transfer Tax (Ga. Laws 1967, p. 788):

(I) Deeds of Gift,

(2) Executor's Deeds,

(3) Administrator's Deeds,

(4) Foreclosures where the mortgagee bids in the property at the sale.

Section I of the Georgia Real Estate Transfer Tax Act reads as follows:

"There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the

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consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining therein at the time of sale) exceeds one hundred dollars, a tax . . . ."(Ga.Lawsl967,p.788, 1).
Thus, the tax applies only to realty sold, and a deed of gift is not a sale. Accordingly, as to Number I, no tax would be due. Palmer-Florida Corp. v. Green, 88 So. 2d 493 (1956).
In order to answer your second and third questions, it is necessary to know for what purpose the deed from an executor or administrator is being given. If the deed was pursuant to a devise contained in the testator's will, then no tax would be due because this is not a sale. If, on the other hand, the executor or administrator was selling the property, then the tax would be due.
To answer your fourth question, a foreclosure is still a sale. The coincidence that the purchaser is also the mortgagee would not change the incidence of the tax. Even if the mortgagee were to accept the property back from the mortgagor in full consideration of the outstanding balance of the mortgage, in lieu of going through the foreclosure procedure, the transaction would still be subject to the transfer tax. Railroad Federal Savings & Loan Ass'n. v. U.S. 135 F.2d 290, 153 A.L.R. 581 (2nd Cir., 1943).

OPINION 68-68 (Unofficial)

February 16, 1968

In your letter you state that you have been refused registration to vote on the grounds that you are not a resident because your husband is in military service and Augusta is not his home of record. You state further as follows:

"We have been residents of Richmond County since August 1966. We have purchased a home here Uointly owned), we pay property taxes to support local government and schools, we file a Georgia income tax return. My husband is an Army Officer on duty at Ft. Gordon; I am a Georgia Merit System employee (Richmond County Department of Family and Children Services).''

You state further that you are an American citizen over twentyone, literate, with no criminal record.

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As you have recognized, the determination of residence for purposes of registering to vote involves questions of various facts. I have no way of ascertaining all of these facts and in answering your inquiry can only assume the validity of the facts stated and that there are no other facts to the contrary.
Ga. Code Ann. 34-602, a copy of which is enclosed for your information, sets up the qualifications of electors. Ga. Code Ann. 34-632, copy enclosed, sets out the rules for determining residence. The two rules which appear to be pertinent to your inquiry are subparagraphs (a) and (i) of Ga. Code Ann. 34632, which read as follows:
"(a) The residence of any person shall be held to be in that place in which his habitation is fixed, without any present intention of removing therefrom, and to which, whenever he is absent, he intends to return;"
"(i) No member of the armed forces of the United States shall be deemed to have acquired a residence in this State by reason of being stationed on duty in this State;"
These two rules must be construed together. That is to say, a person who is a member of the armed forces does not acquire residence in this State merely because he is stationed here. However, a member of the armed forces stationed in this State, who acquires a domicile here, without any present intention of removing therefrom, and to which, whenever he is absent, he intends to return, would acquire residence in this State. Your residence would be that of your husband.

OPINION 68-69 (Unofficial)

February 16, 1968

This is in reply to your posing several questions regarding the effect of an adjournment of the General Assembly. Specifically, you have asked:

(I) When would be the last date that the Governor would be authorized to approve or veto bills passed at the 1968 Regular Session of the General Assembly prior to its adjournment on January 19, 1968, assuming that no bill or resolution that had been passed or adopted had been sent to him prior to adjournment?

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{2) In the event your opinion re!anve to inquiry number I is that the Governor shall have thirty days (Sundays excepted) from the date of adjournment (January 19, 1968) in which to approve or veto bills, would a bill sent to the Governor after the expiration of said thirty-day period automatically become law, bearing in mind that Art. V, Sec. L Par. XV of the Constitution of the State of Georgia, in part, provides that "The Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws."
(3) Was the Session of the General Assembly which adjourned on January 19, 1968, and the present Session of the General Assembly two Sessions of the General Assembly or one Session of the General Assembly?
(4) Would there be a difference in your opinion relative to the first three inquiries if the resolution had contained the words "recess" rather than "adjournment"?
(5) In the event it is your opinion that the time the General Assembly met prior to and including January 19, 1968, constituted a Session of the General Assembly, would appointees made by the Governor subsequent to the adjournment of the 1967 Session of the General Assembly, through and including January 19, 1968, cease to hold office as provided in Ga. Code Ann. 40-314?
In order to answer your questions, it will be necessary to consider several constitutional provisions and to construe them harmoniously by giving effect wherever possible to each part. Welborn v. E~tes, 70 Ga. 290(2) (1883).
Art. V, Sec. I, Par. XVI of the constitution (Ga. Code Ann. 2-30 16) requires that every vote, resolution or order of the General Assembly other than matters involving constitutional questions, elections or adjournments, be presented to the Governor for approval or disapproval prior to becoming effective. Similarly, Georgia Constitution Art. V, Sec. I, Par. XV (Ga. Code Ann. 2-30 15) provides, inter alia, that the Governor shall have the revision of all bills passed by the General Assembly before the same shall become law. Accordingly, I believe it clear that any legislation must first be presented to the Governor for approval

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In order to be effective. Therefore, the answer to the second question is in the negative.
Once a bill is presented to the Governor, he is given a certain number of days, excluding Sundays, in which to act on it. Georgia Constitution Art. V, Sec. L Par. XV (Ga. Code Ann. 2-3015) provides inter alia, that the Governor must return a bill to the General Assembly within five (5) days of its presentment to him unless the General Assembly shall prevent its return by adjournment, in which case the Governor has thirty (30) days from the date of adjournment in which to act. Applying this language to the adjournment from January 19 to January 29, 1968, I believe that had a bill been presented to the Governor in the period January 15, 1968, through January 22, 1968, the Governor would have had thirty (30) days from the date of adjournment on January 19 in which to act. The thirty (30) day provision would apply because the Governor would have been prevented by the adjournment from returning, within five (5) days, a bill presented during such period. Had a bill been presented to the Governor before January 15, 1968, or in the period January 23 to January 29, 1969, then the Governor would not have been prevented by the adjournment from returning the bill within five (5) days, and accordingly, the five-day provision would have prevailed.
Turning now to your questions 3 and 5, I believe that the General Assembly convened on January 8, 1968, and reconvened on January 29, 1968, in one regular session. The Constitution limits a regular session to a total of 40 days in an even-numbered year. It also provides that the General Assembly " ... may adjourn any regular session to such later date as it may fix for reconvening in regular session." Georgia Constitution Art. Ill, Sec. V, Par. Ill (Ga. Code Ann. 2-1603). Construing the language of that article so as to give meaning to each part, I can only conclude that the General Assembly may meet each year in one regular session of a certain number of days but that it may prolong that session by adjourning and reconvening at a later date. Any other construction would make the time limitation meaningless because, if the General Assembly could adjourn and reconvene in a separate regular session of 40 days, it could stay in session indefinitely. Therefore, the answer to question number 3 is that to date, there has been only one regular session held this

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year. This conclusion prevents the operation of Ga. Code Ann. 40-314 as of January 19, 1968, and thus avoids the problem posed in question 5.
As discussed above, an adjournment has the effect of suspending a regular session of the General Assembly to a later date. A recess, however, does not suspend a session of the General Assembly. Consequently, if a recess had been declared instead of an adjournment on January 19, 1968, and had any bills been presented to the Governor during such period, the Governor would have been required to act within the five-day period prescribed in Art. V, Sec. I. Par. XV of the constitution. Thus, the answer to question 4 is "yes."

OPINION 68-70 (Unofficial)

February 16, 1968

This is in reply to your letter asking whether the Board of Commissioners may properly expend public funds to conduct an election to determine public opinion on a controversial issue. As I understand the situation, the Board will base its decision whether to construct a new Superior Courthouse, remodel the existing Courthouse or take no action at all on the results of such election.
The governing authority of a county is vested with the duty and authority to make all contracts for the construction or repair of county buildings. Ga. Code Ann. 91-701,91-702. It has been held that the governing authority of a county has broad discretion in the exercise of such authority. Turner v. Johnson. 183 Ga. 176 (1936). However, it is clear that in this situation, the Board of Commissioners would not be exercising any discretion but would be delegating such discretion to the electorate. Furthermore, it has been held that neither the counties of this State nor their officers can do any act, make any contract or incur any liability not authorized by some legislative act. Bowers v. Hanks. 152 Ga. 659 (1921). "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." Houston County v. Kersh & Wynne, 82 Ga. 252, 255 ( 1888).

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Accordingly, in the absence of any statutory authority, I believe that the Board of Commissioners would not be authorized to expend county funds to conduct an election in the nature of a "straw vote" or public opinion poll.

OPINION 68-71 (Unofficial)

February 16, 1968

You ask whether the following transaction is subject to the Georgia Real Estate Transfer Tax Act (Ga. Laws 1967, p. 788):
Real estate transactions which involve an exchange of realty and no cash or monetary consideration passes hands.
To answer your question, the tax is imposed on the privilege of selling realty. Berry v. Kavanagh, 137 F.2d 574 (6th Cir., 1943). Here we have a sale of realty with the consideration received being another piece of realty, each to the other. Accordingly, such transactions are subject to the transfer tax.

OPINION 68-72 (Unofficial)

February 19, 1968

In your letter you ask whether the Transfer Tax Act (Ga. Laws 1967, p. 788) applies to the following transfers involving the Administration of Veterans Affairs:

1. Deeds in which the Administrator is the grantee. Such conveyances arise out of the liquidation of loans guaranteed by the VA. Under the contract of guaranty the mortgagee may elect to convey the security to the Administrator after foreclosure for a pre-determined consideration based on an appraisal of the property by the VA immediately prior to foreclosure.
2. Deeds in which the Administrator is the grantor. These conveyances arise out of the resale of properties acquired by the Administrator as a result of the above outlined procedure.
3. Deeds under power of sale by the Administrator as attorney in-fact for a mortgagor who has obtained a direct loan.

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On January 30, 1968, the Attorney General rendered an unofficial opinion (Opinion 68-37) concerning certain transfers of property involving the Department of Housing and Urban Development. I enClosed a copy of that opinion. The rules set out in the opinion to the Department of Housing and Urban Development controls the questions which you ask.
Applying the rules in the previous opinion it is my conclusion that conveyances in categories 1 and 2 would not be subject to the tax. Conveyances in category 3 would not be subject to the tax if the property is bid in by the Administrator. If, however, the property at such sale is purchased by a third party the conveyance would be subject to the tax.

OPINION 68-73 (Unofficial)

February 19, 1968

You ask whether you must furnish the State Revenue Commissioner with information as to the actual consideration paid for real property sold in regard to the Georgia Real Estate Transfer Tax (Ga. Laws 1967, p. 788).

As you know, that Act requires the State Revenue Commissioner to collect the tax in question at the rate of fifty cents for the first $500.00 or fractional part thereof, and at the rate of ten cents for each additional $100.00 or fractional part thereof of the consideration paid for real property conveyed. That Act also makes the Clerks of the Superior Courts his agents for the collection of the tax. The only way he can determine whether the proper tax has been collected is to compare the actual tax collected with the actual consideration paid. Thus, you have the right and the duty to require taxpayers to furnish you with information as to the actual consideration received. Indeed their failure to furnish you this information can subject them to the criminal penalties provided in the Act. Therefore when a deed contains information that the consideration received was "$10.00 and other valuable consideration" you must determine the real consideration received, and furnish this information to the State Revenue Commissioner.

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OPINION 68---74 (Unofficial)

February 19, 1968

In your letter you state that you are engaged in the interstate mail order sale of cigarettes. You ask information as to the procedures the State of Georgia requires for notice and reports under the Jenkins Act.
The State Department of Revenue has not adopted special forms or procedures to be used in the reports required under this Act.
As you know the Jenkins Act, 15 U.S.C.A. 376, requires a person engaged in the sale of cigarettes in interstate commerce to:
1. File a statement with the State Revenue Department setting forth his name, trade name and the address of his principal place of business and of any other place of business.
2. File with the State Revenue Department not later than the tenth day of each calendar month a memorandum or copy of the invoice covering every shipment of cigarettes made during the previous calendar month, the memorandum or invoice to include the name and address of the person to whom the shipment was made, the brand and the quantity.
It should be noted that persons in the State of Georgia who purchase non-tax paid cigarettes from you must register with the State Revenue Commissioner and failure to register and pay the tax on cigarettes which they acquire will subject them to severe penalties. Ga. Code Ann. 92-2214 and 92-2217.

OPINION 68---75 (Unofficial)

February 19, 1968

You requested an opinion as to:

1. Whether the Georgia Ports Authority is required to pay the Georgia Real Estate Transfer Tax (Ga. Laws 1967, p. 788); and
2. Whether the Georgia Railway Company is required to pay ad valorem taxes on a piece of property owned by it on

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January I, 1968, but sold to the Georgia Ports Authority on February 15, 1968.
The Georgia Real Estate Transfer Tax Act, I (Ga. Laws 1967, p. 788) reads as follows:
"Section I. There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale) exceeds one hundred dollars, a tax at the rate of fifty cents for the first five hundred dollars or fractional part thereof, and at the rate of 10 cents for each additional one hundred dollars or fractional part thereof."
This is an excise tax imposed on the privilege of selling realty. See Barry v. Kavanagh, 137 F.2d 574 (6th Cir., 1943), with a secondary imposition of the tax on the transferee.
There is nothing in the Act that indicates an intention of the General Assembly to exempt certain transfers of real property, where the Georgia Ports Authority is a party, from the excise tax. By following the rule of statutory construction which demands strict construction of tax exemptions, it is clear that the Georgia Ports Authority is subject to the transfer tax; nor is there anything in the Constitution of Georgia, or the Act creating the Authority which would prohibit the imposition of such an excise tax, Ga. Code Ann. Ch. 98-2.
I would, however, point out to you that there is presently pending a bill (H.B. 1197) which would exempt an agency such as the Georgia Ports Authority from this excise tax.
In answer to your second question, it is not necessary to determine whether property owned by the Georgia Ports Authority is subject to ad valorem taxation under the facts outlined in your letter. Assuming, but not deciding, that it is exempt, the tax would still be imposed at the same rate because the property is taxed as of January I, of each year (See Ga. Code Ann. 92-2701), and on January I, 1968, the property was

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owned by the Central of Georgia Railway Company. The fact that the property was subsequently sold to the Georgia Ports Authority on February 15, 1968, would not change the tax liability imposed on such property.

OPINION 68-76

February 20, 1968

This refers to your recent letter requesting that a proposed contract between the Georgia Department of Industry and Trade and the Putnam County Dairy Festival be redrawn to reflect, inter alia. that the agreement is to provide for the Department's fiscal participation in the connection with the 1967 Festival, utilizing funds made available for this purpose from the Governor's Emergency Fund.

Material furnished in connection with your request indicates that on June 30, 1967, the Festival requested the Department's participation in defraying its costs in promoting the sale of Georgia dairy products throughout the State and the Southeast. The Department made no commitment, but rather declined, in part upon the ground that its promotional budget for the quarter would not permit such an expenditure. Since that time an allocation from the Governor's Emergency Fund, specifically designated for the partial reimbursement of the Festival, has been made available to the Department. The Festival has again requested that the Department enter into an agreement with it respecting fiscal participation in the already concluded 1967 Festival.

I feel I must respectfully decline to draft the contemplated contract for the following reasons:

The general rule is that a past consideration will not support a subsequent promise. Bankers Trust and Audit Company v. Farmers and Merchants Bank. 163 Ga. 352 (1926) [and cases cited therein]. An agreement based upon a past consideration is not a legally enforceable contract. 17 C.J.S. Contracts 116. Moreover, it is well settled that before a public officer can be justified in paying out public money, he must be under a clear obligation to do so. Freeny v. Geoghegan, 177 Ga. 142 (1933); Civil Service Board of Fulton County v. MacNeill, 201 Ga. 643 (1946).

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Therefore, it appears to me that the contract proposed by the Festival, being based solely on a past consideration, would not constitute a binding obligation of the Department. Any expenditure of public funds pursuant to such an unenforceable agreement would, of course, contravene the gift and gratuities provision of the Constitution of the State of Georgia (Ga. Code Ann. 2-5402).

OPINION 68-77 (Unofficial)

February 21, 1968

This responds to your letter requesting citations of legal authorities in Georgia, if any, authorizing, permitting or prohibiting collective bargaining by public school teachers.

Ga. Code Ann. 32-607 (Ga. Laws 1964, p. 3, 9) appears to be the only provision directly applicable to your inquiry. It provides:

"All teachers, principals, other certificated professional personnel, and all other school personnel of local units of administration shall be employed by local boards of education on the recommendation of the superintendent of schools of the local unit:' Provided, however, any board, by a vote of three-fourths of the entire membership of such board, may employ teachers, principals, other certificated professional personnel and all other school personnel without the recommendation of the superintendent. Minimum qualifications for employment of all school personnel may be prescribed by the State Board of Education un_less otherwise provided by law. Employment contracts of teachers, principals and other certificated professional personnel shall be in writing and shall be signed in duplicate by such personnel on their own behalf and by the local superintendent of schools on behalf of the local board of education."
That section appears to me to contemplate individual-rather than collective-bargaining between teachers and school boards, culminating in separate, individually signed written agreements.

I am not familiar with any proposals before the Georgia General Assembly to authorize collective bargaining by teachers.

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OPINION 68-78 (Unofficial)

February 21, 1968

You ask whether a cemetery deed for interment rights is subject to the Georgia Real Estate Transfer Tax (Ga. Laws 1967, p. 788).
Section I of that Act reads as follows:
'There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser 'or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining therein at the time of sale) exceeds one hundred dollars, a tax at the rate of fifty cents for the first five hundred dollars or fractional part thereof, and at the rate of 10 cents for each additional one hundred dollars or fractional part thereof."
This is an excise tax on the privilege of selling realty. Berry v. Kavanagh, 137 F.2d 574 (6th Cir., 1943). Although there is a scarcity of cases dealing with the question of whether one who purchases a cemetery lot purchases an interest in land, the Georgia cases I have found stand for the proposition that the grantee in a deed to a lot in a cemetery, for the purpose of sepulcher, acquires only an easement in the soil for the purpose of the grant. Nicholson v.. Daffin, eta!., Commissioners, 142 Ga. 729 (1914). See also Augusta v. Bredenberg, 146 Ga. 459 (1917); Savannah v. Co/ding, 181 Ga. 260 (1935); and see the annotation in 136 A. L. R. 379, 399. An easement in land is a mere license and does not convey an interest in land. Henson, Tax Assessor, et a!. v. Airways Service, Inc., 220 Ga. 44 (1964). Accordingly, no land has been sold and no Georgia Real Estate Transfer Tax is due.

OPINION 68-79 (Unofficial)

February 22, 1968

This is in reply to your inquiry as to whether an oyster bed lease is subject to sale in satisfaction of a judgment and whether the

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lease would be subject to cancellation if the party purchasing same did not abide by the stipulations contained therein.
Ga. Code Ann. 45-907 and 45-908 which authorize the Commission to execute such leases are silent on the question of assignability. Moreover, nothing in the leases themselves precludes a transfer. I can only assume that these instruments, being for a 20-year term, are long term leases which convey an estate for years and are, therefore, assignable.
In answer to your second question, any oyster bed lease may be terminated by the Commission without cause after giving 30 days written notice of its intention to do so. Of course, the lease is also subject to immediate termination upon the breach of certain stipulations. It goes without saying that an assignee must uphold all conditions of the lease to avoid cancellation.
If you have reason to believe that the Glynn Ice and Coal Company of Brunswick, Inc. is not fulfilling the stipulations contained in those leases which it bought at the sheriffs sale, please provide the State Game and Fish Commission with further details so that the appropriate action may be taken.

OPINION 68-80 (Unofficial)

February 23, 1968

This is in reply to your request for an unofficial opinion on the proposed revision of the charter of the City of Baxley. You have inquired as follows:

"The first question is about Section 26 under Section 7 which authorizes the city police to make arrests outside the city limits of Baxley and when within the County of Appling for violation of ordinances within the city. Is not this the power of the Sheriffs Department and or a County Police force?

"My second question concerns Section 15 which provides for the annexation of the Baxley Municipal Airport located three miles outside the city limits of Baxley.

"The question I propose is this: Can the airport be annexed to the City of Baxley without taking in all of the homes and businesses which lie between the airport and the city limits?

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In other words, there are many homes and businesses within the three miles outside of the city limits. Before one gets to the airport, would not taking in the airport also bring in the homes and businesses between the airport and the present city limits?"
Section 7 of the amendment, amending section 26 of the charter, provides that the city marshals are "authorized to make arrest anywhere within the limits of Appling County for violation against the ordinances of said city upon the warrants issued by the mayor of said city, or other courts having jurisdiction in the said city, upon affidavit duly made." As you have indicated, the power to make arrest in a county outside the city limits is normally a function of the sheriffs department or a county policeman. However, I am aware of no constitutional prohibition which would prevent the General Assembly from giving a law enforcement officer arrest power, upon warrants duly issued, outside the customary territorial limits of the area served by that officer.
Regarding the Baxley Municipal Airport, I am a:ware of no constitutional requirement which would prevent a city from incorporating its airport as a part of the city, even though the airport is not contiguous to the remainder of the city. In fact, the Uniform Airports Law, Ga. Code Ann. 11-201, et seq., makes provision for such airports, and, if anything, therein might be a problem.

OPINION 68--81 (Unofficial)

February 23, 1968

This office has received a request from the Honorable J. A. Hardman, British Consultate General, requesting an opinion as to whether a certain British subject is liable for Georgia ad valorem tax on a motor vehicle owned by him. The Subject is Mr. Ewan Arnett Johnstone, who holds an A-2 visa.
As I understand it, Mr. Johnstone i~directly employed by the Ministry of Technology of the United Kingdom and is presently serving as an adviser at the Lockheed Aircraft Corporation for the purpose of supervising the installation of certain British aircraft parts.

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With the exception of the treaty between the United Kingdom and the United States involving Consular Officers, a status not involving Mr. Johnstone, I can find no treaty, presently in force, relating to the question of whether a governmental employee of the United Kingdom, not a part of the diplomatic mission of the United Kingdom to the United States, is exempt from a State's motor vehicle ad valorem tax.
Accordingly, I would be grateful if you can enlighten me as to the existence of such a treaty; or in the alternative whether a question of comity (reciprocity) exists-if United States governmental officers, not attached to the diplomatic mission or as consular officers, are afforded an ad valorem tax exemption by the United Kingdom on their personal property.

OPINION 68-82

February 28, 1968

You advised me that you have received notice that foreign-made fireworks are being shipped from foreign countries to a Georgia port where they are being stored in warehouses and from there, transported to other states. You have requested my official opinion on the following questions:

l. If these fireworks are being stored in bonded warehouse temporarily and then transported to other states where legalized, is there a violation of the fireworks law?

2. If these fireworks are being shipped to a buyer in the port area, stored in private warehouses and then distributed and sold from this particular location, would such activity constitute a violation of the law?

The Fireworks Control Act provides that:

"It shaH be unlawful for any person; firm, corporation, association or partnership to offer for sale at retail or wholesale, to use or explode or cause to be exploded, to possess, manufacture or transport any 'fireworks' except as otherwise provided in this Act." Ga. Laws 1962, pp. 11, 12 (Ga. Code Ann. 92A-802). (Emphasis added.)

Nowhere in the Act does the law provide an exception for the acts such as you have described in the above two questions.

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The Supreme Court of Georgia has decided:
"The 1962 Act (Ga. L. 1962, pp. 11-14), restricting the manufacture, sale, and use of fireworks, does not violate the Commerce Clause of the Federal Contitution, nor is it unconstitutional for the reason, as contended, that Congress has pre-empted the regulation of fireworks by Federal legislation. An exception by Congress of fireworks from the provisions of a criminal statute (18 U.S.C.A. 832) does not preclude legislative enactment by the several States." Dixie Fireworks Company, Inc. v. McArthur, 218 Ga. 735(2) ( 1963).
In view of the Act's express prohibition against possessing, manufacturing or transporting fireworks, it is my opinion that the activities described in both of your questions are in violation of the Fireworks Control Act.

OPINION 68-83 (Unofficial)

February 29, 1968

This is in reply to your letter concerning the proper disposition of alcoholic beverages seized as contraband.

Legal liquors, such as those distilled spirits meeting Federal standards and commonly referred to as "red" whiskies, are required by law to be delivered to the State Revenue Commissioner where they are sold or possessed contrary to law. Such legal liquors are required to be delivered to the Revenue Commissioner in each and every county and municipality in this State whether or not that community has voted to legalize the sale of alcoholic beverages. The Supreme Court in the case of Redwine v. Berry, 210 Ga. 567 (1954), held that "Code Section 58-1065, required all such legal liquors, seized as contraband, 'in any county of the State,' to be immediately delivered to ..." the State Revenue Commissioner.
Ga. Code Ann. 58-122 requires prohibited liquors commonly referred to as moonshine to be destroyed.

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OPINION 68-84 (Unofficial)

February 29, 1968

This letter is being sent to you at your request and as a result of our conversation in my office yesterday, during which you handed me a letter which you had received from Eugene J. Smith, Clerk of the Superior Court of Jefferson County, along with a copy of Mr. Smith's bill for certified copies of documents which are to be used to procure the .extradition of William E. Shamray and Timothy Judson Lindow. It is my understanding from our conversation yesterday that these two men were incarcerated in an out-of-state prison, that during the course of that confinement they were brought to Jefferson County for the purpose of being tried in the Superior Court of that county, that they were tried and convicted in Jefferson County, that they w~re sentenced to serve a term in the Georgia Correctional System, the same to be served consecutively to the out-of-state sentence, that at the conclusion of the trial they were returned to the foreign State, and that the Department of Corrections filed a detainer with the foreign State. I understand that it has been the policy of the State Board of Corrections to file detainers in such instances because it has been your experience that local authorities frequently do not take this precaution. I further understand that it has been the thinking of your Department that the filing of such detainers is the responsibility of the local authorities, but that you have in the past undertaken to do this out of an abundance of precaution. I further understand that you were specifically requested to obtain the certified documents from the Superior Court Clerk of Jefferson County by the Honorable Frank Blankenship.
The question which you have presented to me is whether or not the State Board of Corrections is authorized to pay the Superior Court Clerk of Jefferson County for his services in connection with this matter. Two statutes appear to be relevant to this inquiry. I direct your attention to Ga. Code Ann. 77 -309(d) which provides that the Director of Corrections shall assign a prisoner to a penal institution within a reasonable time after sentencing, and that if the prisoner is assigned to a State prison the financial duty and obligation rests upon the institution for picking up and transporting the prisoner to that institution. I wish to direct your attention also to the provisions of Ga. Code Ann.

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77-309(e) which states that it is the responsibility of the governmental unit having physical custody of a prisoner to bear all expenses relating to the extradition of such prisoner.
Inasmuch as you have informed me that these two prisoners are not now and never have been physically in the custody of the State Board of Corrections, and in view of the explicit provision of Ga. Code Ann. 77-309(e) relating to extradition expenses, it is my opinion that the expense related to procuring the certified documents used to support the extradition of these two prisoners is properly chargeable to the governmental unit which has had physical custody of the prisoners. Inasmuch as these two prisoners have never been in the physical custody of the State Board of Corrections, and presumably have been in the physical custody of the Sheriff of Jefferson County, it is my opinion that the State Board of Corrections may not lawfully pay the bill presented by the Superior Court Clerk of Jefferson County.

OPINION 68---85 (Unofficial)

February 29, 1968

You asked whether it is necessary for a person who wishes to apply for a ballot to be sent to an absent elector, to personally appear before the board of registrars in order to satisfactorily prove the relationship required by Ga. Code Ann. 34-1402(a). As I understand your situation, persons not having the requisite relationship have applied for absentee ballots for absent electors claiming authorization from persons having the requisite relationship.
Ga. Code Ann. 34-1402(a) provides in relevant part:
"Any absentee elector or, upon satisfactory proof of relationship, his mother, father, aunt, uncle, sister, brother, spouse, or daughter or son of the age of 18 or over, may, not more than 90 days prior to the date of the primary or election the elector desires to vote in, make an application to the board of registrars of the county of the elector's residence for an official ballot of the elector's district to be voted at such primary or election."
As you know, construction of a statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga.

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465, 470 (1928). The above-described Code section requires the application to be made by a relative of the absent elector, the applicant to show proof of his relationship to such elector. Conversely, it requires the board of registrars to be satisfied by such proof. Whether or not such proof could be established by an applicant by means other than a personal appearance addresses itself to the discretion of such board. In any event, however, the statute clearly authorizes only those specified relatives to make application. Such authority may not be delegated to a person not having the requisite relationship. See, Bailey v. Lumpkin. I Ga. 392, 403 (1846). Accordingly, I believe that the board of registrars may and should refuse to issue a ballot for an absentee elector when the application is made by anyone not bearing the proper relationship to such elector.

OPINION 68-86

February 29, 1968

You ask whether or not the State Board of Corrections may enter into a contract with the Bureau of Prisons to provide for the incarceration of a Federal prisoner in the penal system of this State. I understand that the Bureau of Prisons desires to have this inmate serve his Federal sentence in the State penal system.
Ga. Code Ann. 77-309 evinces a clear legislative intent that the inmates of the State prison system shall be those persons who have been committed thereto by the courts of this State. I am of the opinion, therefore, that the State Board of Corrections may not enter into a contract with the Bureau of Prisons for the incarceration of a Federal prisoner in the penal system of this State.

OPINION 68-87

March I, 1968

You asked if it would be legal to use a new timing device known as VASCAR (Visual Average Speed Computer and Recorder) as an automobile speed detection aid. Additionally, you asked my opinion as to the admissibility of evidence deduced from use of such equipment.

A review of the literature accompanying your inquiry reveals that VASCAR is an instrument whereby the speed of a moving

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object is determined by the time requireo for the object to travel a given distance. It would be apparent, therefore, that such a device would be considered a timing device as opposed to a radar device.
There is no Georgia law which prohibits the use of timing devices or radar by the Georgia State Highway Patrol. Ga. Code Ann. 68-1682 prohibits the use of such devices by Ia w enforcement officers other than the Georgia State Highway Patrol.
The evidence obtained by use of a VASCAR unit would be admissible in the same manner as evidence obtained from any other timing or radar device. There is nothing to indicate that evidence obtained by use of a VASCAR unit is inherently inadmissible.
OPINION 68-88 (Unofficial) March 4, 1968
You requested an opinion as to the responsibility of the City of Augusta to provide full-time city firemen and policemen, who are in the United States Armed Forces Reserves, a paid vacation in addition to the two weeks annual leave for active military duty.
As I understand your question, you are concerned with the obligation of the city to provide employees with an annual paid vacation, rather than requiring them to utilize their vacation time for the two weeks active duty required by the United States Armed Forces Reserves and thus have to forego a regular vacation.
Your attention is called to the Georgia Military Forces Reorganization Act of 1955, as amended (hereinafter sometimes referred to as the Act), and as codified in Ga. Code Ann. 86ll09(d), which provides that:
Time during which a public officer or employee is absent pursuant to the provisions of subsections b and c of this section shall not constitute an interruption of continuous employment, and notwithstanding the provisions of any general, special or local law or the provisions of any city charter, no such officer or employee shall be subjected, directly or indirectly, to any loss or dimunition of time,

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service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence, or be prejudiced, by reason of such absence with reference to continuance in office or employment, reappointment to office, reemployment, reinstatement, transfer or promotion.
By Ga. Code Ann. 86-1109(a)(l) provision is made that:
The term "public officer or employee," as used in this section, shall include every person, by whatsoever title, description or designation.known, who receives any pay, salary or compensation of any kind from the State, county or a municipal corporation or any other political subdivision thereof, or who is in any department of the State, but shall not include persons employed by the State, county or a municipal corporation or any political subdivision thereof on a temporary basis.
Therefore, the firemen and policemen of the City, employed full-time, would come within the above definition of "public officer or employee." Furthermore, by Ga. Code Ann. 86ll09(a)(2) it is provided that:
The term "ordered military duty," as used in this section, shall mean: (a) Any military duty performed in the service of the State or of the United States, including but not limited to attendance at any service school or schools conducted by the armed forces of the United States by a public officer or employee as a voluntary member of any force of the organized militia or of any reserve force or reserve component of the armed forces of the United States pursuant to orders issued by competent State and Federal authority, without the consent of such public officer or employee. (b) Such duty, performed for a period or periods not exceeding a total of 30 days in any one calendar year, shall be deemed "ordered military duty" regardless of whether such orders are or may be issued with the consent of such public officer or employee.
Therefore, it is my unofficial opinion that service by the policemen and firemen in the United States Armed Forces Reserves during the annual two weeks of active duty would come within the above definition of "ordered military duty."

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Finally, by Ga. Code Ann. 86-1109(e) provision is made that:
Pay for 30 days. Every public officer or employee shall be paid his salary or other compensation as such public officer or employee for any and all periods of absence while engaged in the performance of ordered military duty, and which going to and returning from such duty, not exceeding a total of 30 days in any one calendar year and not exceeding 30 days in any one continuous period of such absence.
It is thus my unofficial opinion that the full-time City firemen and policemen who are members of the United States Armed Forces Reserves are entitled to paid periods of absence up to 30 days while engaged in the "performance of ordered military duty" and that such absence is not to cause "any loss or demunition of
. vacation or holiday privileges...."

OPINION 68-89 (Unofficial)

March 4, 1968

You request an opinion as to whether a transaction involving a deed from a mortgagor to a mortgagee in lieu of foreclosure is subject to the Georgia Real Estate Transfer Tax Act. (Ga. Laws 1967, p. 788).

Section I of the Georgia Real Estate Transfer Tax Act was adopted practically in toto from 26 U.S.C.A. 4361 of the United States Code. In Railroad Federal Savings and Loan Association v. U.S., 135 F.2d 290, 153 A.L.R. 581 (2nd Cir., 1943), the court held that mortgagee, accepting deeds of mortgaged property in lieu of foreclosure, was subject to the documentary stamp tax imposed by the Federal statute based on the outstanding principal, accrued interest, and nominal consideration paid by mortgagee to the mortgagor (in substance, the value of the outstanding mortgage). Accordingly, we would be bound by the same interpretation and such a transaction would be subject to the tax in question.

OPINION 68---90

March 4, 1968

You ask whether or not two physicians who are not fully licensed to practice medicine in the State of Georgia and who are

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not citizens of the United States, but who are patholgoists and are full-time assistant professors of pathology at Emory University School of Medicine may be appointed as medical examiners under the Georgia Post Mortem Examination Act.
The Director of the State Crime Laboratory and the Director of the Department of Public Health are directed to authorize "licensed physicians or patholgoists ... to act as medical examiners in performing post mortem examinations andjor autopsies" which are required by the Georgia Post Mortem Examination Act. Ga. Code Ann. 21-203(2). A medical examiner is legislatively defined as "the licensed physician or pathologist designated by the Director of the State Crime Laboratory and the Director of the Department of Public Health ... for the purpose of performing post mortem examinations andjor autopsies as required herein." Ga. Code Ann. 21202(4).
Although Ga. Code Ann. 84-907 refers to applications from licensure candidates to practice "medicine or surgery in any of its branches", an examination of the Medical Practice Act (Ga. Code Ann. Ch. 84-9) indicates that the State of Georgia, acting through the State Board of Medical Examiners, does not license persons to practice a particular branch of medicine. Quite to the contrary, Ga. Code Ann. 84-907 states that such licenses as are granted provide the licensee with "absolute authority to practice medicine in this State."
Thus, it is beyond question that the State of Georgia does not license patholgoists as such.
As I have previously indicated, the Georgia Post Mortem Examination Act authorizes the appointment of "licensed physicians or pathologists" as medical examiners. Ga. Code Ann. 21-203(2). (Emphasis added.) I am aware of the rule of statutory construction which declares that "the word 'or' as used in a statute should be construed as 'and' when necessary to give effect to the intention of the legislature as manifested by the context and circumstances. . . ." Comer v. American Telephone and Telegraph Company, 176 Ga. 651 (1932). A careful examination of the Georgia Post Mortem Examination Act fails to demand the conclusion that the word "or", as used in the phrase "licensed physicians or pathologists", must be construed

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as having a conjunctive meaning. I conclude therefore, that the word "or", as used in this statute, bears its usual, ordinary disjunctive meaning. Georgia Paper Stock Company v. State Tax Board of Georgia, 174 Ga. 816 (1932); Smith v. State, 15 Ga. App. 536 (1914).
My conclusion is based upon a reading of both the present and the previous definitions of a medical examiner and of the present and previous grants of authority to appoint these examiners. The original Act defined a medical examiner as "the licensed physician designated ... for the purpose of performing post mortem examinations as required herein." Ga. Laws 1953, Jan.Feb. Sess., pp. 602, 604. The term "medical examiner" was redefined in 1960 by stating that the examiner is a "licensed physician or pathologist" designated to perform the duties of that office. Ga. Laws 1960, pp. 1009, 1010. The scope of appointments was expanded in 1960 when the Director of the State Crime Laboratory and the Director of the Department of Public Health were directed to designate and authorize "licensed physicians or pathologists", as medical examiners. Ga. Laws 1960, pp. 1009, lOll.
The intention of the legislature could not be clearer. It is ll1Y opinion that the two physicians who are being considered for appointment may be appointed as medical examiners pursuant to the Georgia Post Mortem Examination Act, notwithstanding the fact that they hold licenses which do not authorize the general practice of medicine.
Since your inquiry states that these two physicians hold institutional licenses and contains an expression of the opinion of the Director of the Department of Public Health to the effect that such licenses authorize medical practice only in State institutions, I desire to take this opportunity to correct an erroneous interpretation of the scope of practice granted by such licenses. An institutional license authorizes the holder "to practice medicine in the state institution or medical college employing said licensee...." Ga. Code Ann. 84-927. This provision is applicable to physicians employed at the Emory University School of Medicine to the same extent as it is applicable to the physicians employed at the Medical College of Georgia.
In concluding this phase of the opinion, I state again that it is

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my opinion that the Georgia Post Mortem Examination Act authorizes the appointment of either a licensed physician or a pathologist and that a pathologist need not be licensed as a physician in order to qualify for such appointment.
Although it is not fully expressed in your request, I believe that you are also concerned about the possible effect of the Medical Practice Act (Ga. Code Ann. Ch. 84-9) upon the performance of services by these pathologists. Statutes are presumed to have been enacted by the General Assembly with full knowledge of the existing law. Nelson v. Roberts, 217 Ga. 613 (1962), State Highway Department v. Hatcher, 218 Ga. 299 (1962). The practice of medicine is regulated by Ga. Code Ann. Ch. 84-9 which does not provide for special licenses for the practice of pathology. The General Assembly is presumed to have known of the provisions of Ga. Code Ann. Ch. 84-9 and that no other Act regulated the practice of pathology as such when the 1960 amendment was enacted. Had the General Assembly intended that a pathologist must also be licensed as a physician pursuant to Ga. Code Ann. Ch. 84-9, then there would have been no reason to amend the Georgia Post Mortem Examination Act in 1960.
The legislature has declared that the pathologist may be appointed as and may perform the duties of a medical examiner. It is my opinion that an individual who is a pathologist may be appointed and serve as a medical examiner without regard to the Medical Practice Act (Ga. Code Ann. Ch. 84-9).
The foregoing resolves questions related to the appointment of alien persons not fully licensed to practice medicine as medical examiners under the Georgia Post Mortem Examination Act. You may not, however, nor may any political subdivision of the State employ an alien for any purpose, unless a thorough investigation indicates that no qualified American citizen is available to perform the desired services. Ga. Code Ann. 89-106. Your request reveals, at least inferentially, that a qualified American citizen is not avilable to fill the post of medical examiner in the area in which this need has arisen. While I assume that you have made this investigation and determination required by Ga. Code Ann. 89-106, I feel that these requirements should be called to your attention in this opinion, as failure to comply with the same subjects the employer to removal from office. Ga. Code Ann. 89-107.

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OPINION 68-91

March 4, 1968

You have requested my official opm10n as to whether the responsibility under Ga. Code Ann. 68-1723 to 68-1726.6 for inspection of motor scooters, which are shipped by a retailer directly to the purchaser, rests upon the retailer prior to shipment or upon the purchaser at the time of registration. My opinion and reasons therefor are as follows:

OPINION
Based upon Ga. Code Ann. 68-1723, 68-1726 and 681726.6, it is my opinion that the retailer must comply with the inspection requirements prior to shipment or sale of such motor scooters to a purchaser.

DISCUSSION
Ga. Code Ann. 68-1502 (!)(a) and 68-1502 (!)(d) defines a "motor vehicle" as follows:
"68-1502. Vehicles and equipment defined. "(I )(a) Vehicle. Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks, or overhead trolley wires.

* * * *
"(d) Motor-driven cycle. Every motorcycle, including every motor scooter, with a motor which produces not to exceed five horsepower, and every bicycle with a motor attached."

Ga. Code Ann. 68-1723 provides:
"No person shall drive or move on any highway any motor vehicle, trailer, semi-trailer or pole trailer, or any combination thereof, unless the equipment upon any and every said vehicle is in good working order and adjustment as required in this law [Chapters 68-15 through 6817; 68-9926, 68-9927] . . . ."(Emphasis added.)
And, Ga. Code Ann. 68-1726.6 provides:
"68-1726.6. New and used car dealers.-After July I, 1965, no dealer engaged in the business of selling new or used

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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 inspection in accordance with the provisions of this Article and current official inspection certificate is obtained for said motor vehicle and placed thereon." (Emphasis added.)
Through the preceding Code sections, it is clear that motor scooters are "motor vehicles" within the meaning of the Act and are required to be inspected. Ga. Code Ann. 68-1726.6 appears to be somewhat ambiguous in that the title of this section refers to "New and Used Car Dealers." However, the body of the section refers to dealers of "any vehicle required to be inspected by this Article", which would include dealers of motor scooters.
The cardinal rule governing construction of statutes, laid down by the Georgia appellate courts, is to carry into effect the legislative intent and purpose of an Act. Lewis v. City ofSmyrna, 214 Ga. 323, 104 S.E.2d 571 ( 1958); Rev/on. Inc. v. Murdock, 103 Ga. App. 842, 120 S.E.2d 912 (1961). In the interpretation of statutes the courts are bound by the statutory definitions of the words used in the Act. Union Dry Goods Co. v. Cook, 71 Ga. App. 708, 32 S. E.2d 190 ( 1945). While the courts may look to the title or caption of an Act to aid in construction of an ambiguous statute [Thompson v. Eastern Air Lines, 200 Ga. 216, 39 S.E.2d 225 (1946) and Harper v. Green, 112 Ga. App. 748, 146 S.E.2d 132 (1965)], the title, preamble or caption of a legislative Act is no part thereof and may be resorted to for the purpose of ascertaining legislative intent only where the body of the Act itself is ambiguous or obscure. [Chambers Lumber Co. v. Martin, 112 Ga. App. 826, 146 S.E.2d 529 (1965) and Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 10 S.E.2d 375 (1940)].
Here, the section is clearly unambiguous and encompasses all motor vehicles included within the meaning of Ga. Code Ann. 68-1502(1), and the caption of Ga. Code Ann. 681726.6 would in no way limit its application. Therefore, the requirements of Ga. Code Ann. 68-1726.6 apply to dealers of motor scooters as well as other motor vehicles, and the dealers in such vehicles must obtain an inspection certificate on the motor scooters before they are delivered to a purchaser.

11 1

OPINION 68---92 (Unofficial)

March 5, 1968

Your letter relates, basically, the following facts: That the subject was sentenced on November 3, 1967, to a twelve (12) months' sentence to be served in the State correctional system. When the State transfer officer went to the Chatham County jail to take custody of the prisoner, he was advised that an additional case was pending, and, therefore, the transfer officer did not take custody. Later, it was learned that the subject had been committed to Central State Hospital pursuant to a lunacy commission hearing and was on conv:;tlescent leave from the Hospital. You have asked if the Board of Corrections should seek to locate the subject and take her into custody.
Your letter does not indicate if the subject was sentenced pursuant to Ga. Code Ann. 27-2506(a) which provides for service of misdemeanor sentences in county facilities, but certified into the State system pursuant to Ga. Code Ann. 77-309(a) which provides for such certification where the county cannot maintain female prisoners; or whether the subject was sentenced pursuant to Ga. Code Ann. 27-2506(b) which provides for service of certain misdemeanor punishments to be served in the State system. I make this distinction because in the case of a sentence under Ga. Code Ann. 27-2506(a), the Code says explicitly "that the delivery of such female prisoner to the proper place of incarceration [within the State system] shall be at the expense of the county of conviction." Ga. Code Ann. 77309(a). (Brackets added.) Clearly then, if the subject was sentenced pursuant to Ga. Code Ann. 27-2506(a) and certified into the State system, there is no obligation on the Board of Corrections to seek out the prisoner at all.
If the prisoner is sentenced pursuant to Ga. Code Ann. 272506(b), then a reading of Ga. Code Ann. 77-309(d) would reveal that, "If such prisoner [as described in Ga. Code Ann. 77-309(b)] was assigned to a State prison or other institution, it shall be the duty and financial responsibility of such prison or institution to provide for the picking up and transportation, under guard, of such prisoner to his assigned place of detention." Ga. Code Ann. 77-309(d). (Brackets added.)

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The aforementioned language of Ga. Code Ann. 77-309(d) does not place a burden on the Board of Corrections of "seeking out" a prisoner if his location is undeterminable. I believe it is in the best interests of the Board, and is not violative of any law known to the writer, that the sentencing authorities arrange for the orderly transfer to the State, which would, of course, include the locating, apprehension, or other arrangements necessary for such an orderly transfer of the prisoner.

OPINION 68-93

March 5, 1968

This is in reply to your recent request for my official opinion as to whether a prisoner who was sentenced in 1960 to a 3-5 year sentence but who never served this sentence because he was subsequently confined in the Milledgeville State Hospital must serve this sentence after he was released from the State Hospital in 1967.

It is my understanding that the factual situation surrounding this question is as follows: On March 2, 1960, the prisoner in question was sentenced in the Superior Court of "X" County to 3 to 5 years for the offense of burglary upon the entry of a plea of guilty. Subsequent to the entry of this sentence, but prior to any release of this defendant to the Board of Corrections, the defendant was confined in the Milledgeville State Hospital. In 1967 the prisoner was released from the Milledgeville State Hospital pursuant to a certification of his sanity. On January 3, 1968, the prisoner was convicted on a charge of larceny of a motor vehicle in the "X" County Superior Court pursuant to a plea of guilty. He was sentenced to serve a term of four (4) years. Also, the "X" County Superior Court on January 3, 1968, resentenced the defendant on the original plea of guilty which had been entered in the March, 1960, Term of the "X" County Superior Court. This sentence read:
"The defendant, ... , having never served this sentence because of confinement in Milledgeville State Hospital, it is ordered that this sentence run concurrently with other sentences this day imposed."
Your specific question was whether or not the defendant's confinement in the Milledgeville State Hospital would stop the 35 year sentence from running once it was imposed by the court

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or did the sentence continue to run the date it was imposed. 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 law, to specify that the term of service under such sentence shall be computed as from the date of sentence, provided that the defendant is confined in jail or otherwise incarcerated, and has no appeal or motion for new trial pending . . . ."
The crux of this issue evolves around the definition of the word "incarcerated" as it is used in the above-quoted Code section. Since the defendant was confined in the Milledgeville State Hospital subsequent to his conviction the question presented is whether or not the defendant was "otherwise incarcerated."
The Georgia Legislature and appellate courts have not defined the term incarceration. However, in Black's Law Dictionary, p. 903 (4th Ed., 1951), the term incarceration is defined as: "Imprisonment; confinement in a jail or penitentiary . . . ." As an editorial note following this definition the editors of Black's Law Dictionary, supra, state:
"This term is seldom used in law, though found occasionally in statutes. When so used, it appears always to mean confinement by competent public authority or under due legal process, whereas 'imprisonment' may be effected by a private person without warrant of law, and if unjustifiable is called 'false imprisonment.' No occurrence of such a phrase as 'false incarceration' has been noted." (Emphasis added.)
A search in 20A Words and Phrases 74 (1959 Ed.) reveals that the appellate courts of Indiana in the case of State v. Woodward, 123 Ind. 30, 23 N.E. 968, 969 also define the term incarcerate as "to shut up or restr::"1n one of his liberty."
Theref0'"e, rased on the above definitions of the term incarcerate it is to be concluded that in order to be "otherwise incarcerated" one must be confined by "competent public authority or under due legal process." Therefore, since the defendant was in the Milledgeville State Hospital pursuant to some other civil proceedings, as opposed to detention pursuant to the administrative procedures of the Board of Corrections, then

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his confinement in the Milledgeville State Hospital would not come within the legal definition of the term incarceration.
Furthermore, although the Superior Court resentenced the defendant on January 3, 1968, this resentencing could be termed as an unnecessary act on the part of the court since the defendant was already laboring under the sentence of the March, 1960, Term of the "X" County Superior Court.
Hence, it is my official opinion that the confinment of the defendant in the Milledgeville State Hospital would not come within the legal definition of the term "otherwise incarcerated." Therefore, this sentence imposed during the March, 1960, Term of the "X" County Superior Court would not begin to run until he was released from the Milledgeville State Hospital into the custody of the proper State authorities.

OPINION 68-94

March 5, 1968

This is in reply to your request for an opinion as to whether or not the Department of Agriculture may lawfully purchase protective smocks for use by employees while inspecting
processing plants, meat markets, and retail grocery establishments.
If these protective outergarments are considered reasonably necessary and proper for the conduct of the inspectors' official activities I know of no legal prohibition against their purchase. However, the acquisition of the smocks should be made through the Supervisor of Purchases, and the garments must remain the property of the State since Ga. Laws 1939, pp. 160, 175 (Ga. Code Ann. 40-1937) prohibits the purchase of such property for the individual or personal ownership of any person.

OPINION 68-95 (Unofficial)

March 6, 1968

In your letter you ask whether a common law creditor who has recorded an execution issued on his judgment in the office of the Clerk of Superior Court would take priority over one who subsequently acquired a security interest in an automobile, which security interest was perfected in accordance with the Motor Vehicle Certificate of Title Act (Ga. Code Ann. 68-42la(b)).

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1 t1e question is whether the recording of an execution issued on a judgment on a general execution docket would provide notice to subsequent security interest holders.
Ga. Code Ann. 68-402a(k) defines "lien" as any lien created by operation of law and not by contract and includes all liens mentioned in Ga. Code Ann. 67-1701.
Ga. Code Ann. 68-427a provides that the method of perfecting and giving notice of security interests and liens with respect to motor vehicles for which titles need to be obtained is exclusive and other methods of perfecting liens on security interests are not applicable.
Notice must be given to preserve the lien of a money judgment in personal property of the defendant against the interest of one who subsequently acquires a lien by control in such property. (Ga. Code Ann. 39-701). All methods of perfecting and giving notice of liens in motor vehicles have been supplanted by the Motor Vehicle Certificate of Title Act. The only method of giving notice of a lien in a motor vehicle is by filing in accordance with the Act. Therefore, the filing of an execution on the general execution docket does not afford notice to a subsequent security interest holder in a motor vehicle and the security interest holder's lien is not subject to such prior judgment lien. See Staley v. Phelan Finance Corp., 116 Ga. App. 1 (1967), Manly v. National Acceptance Co., 250 F. Supp. 841 (N.D. Ga. 1966).

OPINION 68-96 (Unofficial)

March 7, 1968

This is in reply to your letter concerning the question of whether or not a dual operator, i.e., a person who, as a retail dealer, sells tangible personal property at retail, and who, as a contractor uses the same type tangible personal property in performing his contracts, is liable for a tax under the Georgia Retailers' and Consumers' Sales and Use Tax (Ga. Laws 1951, pp. 360-87; Ga. Code Ann. Ch. 92-34a), as amended, in respect of property purchased tax free and then used by him as a contractor in some other state.

To understand the tax consequences of this situation, one must keep in mind the nature of the taxes imposed by the Act. The Act

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imposes two taxes: a sales tax and a use tax. The sales tax is the basic imposition made by the Act, and it is imposed on the sale in this State of tangible personal property to a consumer or to anyone for any purpose other than resale in the form of tangible personal property. Ga. Code Ann. 92-3402a, 92-3403a. The use tax is a complimentary tax designed to discourage the making of purchases out of state for the purpose of avoiding the sales tax and to prevent Georgia merchants being placed at a competitive disadvantage with merchants in states having no sales tax. It applies the moment property purchased out of state comes to rest in this State. Its application does not depend on a use in the ordinary sense, since the Act defines the term "use", for purposes of the Act, as the "exercise of any right or power over tangible personal property incident to the ownership thereof'. Ga. Code Ann. 92-3403al.
For cases illustrating how brief a taxable use may be under a statute defining the term "use" as the Georgia statute does, see Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S. Ct. 389, 83 L. Ed. 586 (1939), and Pacijic Telegraph Co. v. Gallagher, 306 U.S. 182,59 S. Ct. 396,83 L. Ed. 595 (1939).
Since, under the Act, Ga. Code Ann. 92-3448a, a contractor is a consumer of that which he purchases for use in performing his contractual obligations, sales to him are retail sales subject to the sales tax if they take place in Georgia. If they take place outside Georgia and the property is then brought into Georgia, the property becomes subject to the Georgia use tax the moment it comes to rest in Georgia, because it is then that the contractor first uses the property within the expanded meaning of the term "use" as it appears in the Act.
Regardless of the state in which the property is thereafter used in the performance of his contracts, the contractor owes either a sales tax or a use tax to the State of Georgia. Whether it is a sales tax or a use tax would depend on whether he purchased the property within or without Georgia. The fact that some other state might impose a use tax on the subsequent use of the property by the contractor in that state without allowing a credit for any sales or use taxes paid to Georgia would not affect the contractor's liability to Georgia.
Therefore, since a dual operator is a consumer of the property

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he uses in performing his contracts, irrespective of where they may be performed, he would owe Georgia a sales tax with respect to his purchase of such property in Georgia and would owe Georgia a use tax with respect to such property purchased outside Georgia and then brought to rest in Georgia.

OPINION 68-97

March 7, 1968

This is in reply to your request for my opinion upon the following question:

"Where a list of electors has become outdated, what action may be taken by a Board of Registrars to make it current?"

I shall assume in answering your request that the Board desires to act at this time, that is, March, 1968.

As you know, the principal reasons an electors list becomes outdated are:

I. Change of residence; 2. Failure to vote in at least one general primary or election within a certain three-year period; 3. Conviction of a crime of such nature as to cause disfranchisement (see Ga. Code Ann. 2-80 I); 4. Adjudication of idiocy or insanity; and 5. Death of the elector.

The list of electors is normally kept current insofar as criminal convictions, insanity and death are concerned, by the operation of Ga. Code Ann. 34-621, which provides as follows:

"The Clerk of the superior court of each county shall, on or before the lOth day of each month, prepare and file with the registrars a complete list, alphabetically arranged, of persons residing in the county who appear to be disqualified from voting by reason of having been convicted of a crime during the preceding month, the penalty of which is disfranchisement, unless such person has been pardoned and the right of suffrage restored to him. The ordinary of each county shall, by such date, file a similar list of all persons residing in the county who appear to be disqualified from voting by reason of an adjudication of idiocy or insanity during the preceding month. The local registrar of vital

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statlstics of each county shall, by such date, file a similar list of those persons who have died during the preceding month. Each such list shall contain such other information as may be necessary to individually identify persons having the same or similar names."
If the foregoing provision has not been complied with, I would see no harm in securing compliance on March 10 or April 10.
Regarding failure to vote, the list of electors normally is kept current by the operation of Ga. Code Ann. 34-620(b) which provides that:
"Within sixty days after the first day of January, beginning in the year 1965, and biennially thereafter, the registrars shall revise and correct the registration records in the following manner. They shall examine the registration cards and shall suspend the registration of all electors who have not voted in any general primary or general election within the three years immediately preceding such first day of January. On or before March 1st of such year they shall mail notice by first class mail to each elector, at his last known address, stating substantially as follows: 'You are hereby notified that according to State law, your registration as a qualified voter will be cancelled for having failed to vote within the past three years, unless before April 1st of the current year you continue your registration by applying in writing to the board of registrars.' Effective April 1, 1965, and biennially thereafter, the registrars shall cancel the registration of all electors thus notified who have not applied for continuance, and the names of all such electors shall be wholly removed from the list of electors prior to May 1st of that year."
The time period chosen is important, as there are two general primaries and two general elections in the three-year period preceding January 1 of each odd-numbered year, whereas there is only one general primary and one general election in the threeyear period preceding even-numbered years.
The procedure for disfranchisement for failure to vote is relatively simple as is the procedure for re-registration (Ga. Code Ann. 34-620[c]). However, the time restrictions set up by Ga. Code Ann. 34-620(6) are specific, and no case has been

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decided allowing the registrars to purge the electors list in evennumbered years for failure to vote.
There is no provision directly related to purging people who move from the county, except for failure to vote (above), and upon transfer of registration (Ga. Code Ann. 34-631). Of course, an elector who has transferred his registration (pursuant to Ga. Code Ann. 34-631) can be removed from the electors list of the county of his former residence.
Ga. Code Ann. 34-628(c) provides another way by which the names of persons no longer eligible to vote may be stricken from the list; this is, chaflenge by an elector. Such a challenge may be made even on election day. The procedure for such challenges is set out in Ga. Code Ann. 34-628(c) and it includes the right of the elector to be heard where time permits. If the list of electors is badly outdated, numerous challenges shortly before and on election day could seriously impair the election and the right to vote.
Ga. Code Ann. 34-627(a) provides that the board of registrars may on its own initiative re-examine the electors list. It provides as follows:
"The board of registrars of each county shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector whose name is entered upon the list of electors, and shall not be limited or estopped by any action previously taken."
Subsections (b) through (d) of Ga. Code Ann. 34-627 provide the procedures to be followed by the board. If the challenged elector does not appear, that alone is not ground for disfranchisement, but the board could proceed with the hearing and accept other evidence as to the ground for disqualification and make its decision based thereon.
I trust that the foregoing deals sufficiently with your inquiry to provide guidance to those involved. I should point out that disfranchisement is serious business and should be undertaken impartially and only by following the procedure prescribed by the Election Code.

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OPINION 68-98

March 8, 1968

You have requested my official opinton whether or not the Board of Corrections should honor an amended order of sentence from a superior court judge concerning an inmate in the custody of the Board, if the Board has reason to believe that the amended order is legally void and unenforceable.
You letter presents the facts in this case as follows: The inmate was given a three year sentence on August 20, 1965, which was affirmed by the appellate court on October 18, 1965; and that the same judge issued an "Order Amending Sentence" on December 28, 1967, reducing the original sentence to one year.
While it is an accepted legal principle in Georgia that a court may correct its judgments or minutes so as to make them conform to the truth and prevent an injustice at a date after the term of court in which the accused was sentenced [Gables v. Hayes, 194 Ga. 297, 298, 21 S.E.2d 624 (1942); Merritt v. State, 122 Ga. 752, 50 S.E. 925 (1905); Tyler v. State, 125 Ga. 46, 53 S.E. 818 (1906); and Pulliam v. Jenkins, 157 Ga. 18, 121 S.E. 679 (1924)], it has long been the rule in this State that the trial court has power to amend and modify its sentences only at the term during which they are imposed [Gables v. Hayes, supra; Auldridge v. Womble, 157 Ga. 64, 120 S.E. 620 (1924); Porter v. Carmony, 148 Ga. 261, 96 S. E. 426 ( 1917); Rutland v. State, 14 Ga. App. 746, 82 S. E. 293 (1914); Mathews v. Swatts. 16 Ga. App. 208, 84 S.E. 980 (1915)].
These precedents cast serious doubt upon the validity of the "Order Amending Sentence" issued on December 28, 1967. I have examined every facet of the two sentencing orders and of the law. In the course of this study I have discussed the case with the sentencing judge. It appears that the amended sentence is the product of compassionate disposition and a later developed belief that this prisoner should serve a term similar to that imposed upon a co-defendant.
In reviewing this amended sentence, I must be guided solely by the applicable law. I conclude, therefore, that the amended sentence is a void order and should be so regarded by the State Board of Corrections.

121

OPINION 68-99

March 8, 1968

This is in response to your request for my official opinion upon the following question:
Does a person entitled to "grandfather rights" under Ga. Code Ann. 84-4 102(b) lose such rights upon failure to renew his license?
Ga. Code Ann. 84-4102(b), relating to the licensing of employment agencies, provides as follows:
"Every applicant for a license shall have been a resident of the State of Georgia at least two years immediately preceding the filing of such application, and have had at least two years experience as a placement counsellor. The provisions of this subsection shall not apply to persons or corporations now licensed in Georgia."
As I undersrand the facts, the applicant in question was the holder of an employment agency license in 1959 when the private employment agencies act became effective. He operated such an agency in Georgia, by annual renewal of his license, until 1961. He now has applied for a new license but he is not a resident of Georgia, or has not been a resident continuously during the past two years.
You have suggested that the General Assembly in enacting the above provision would not have intended to exempt from the residency requirement a person who allowed his license, held by virtue of an exemption, to lapse. This I find is usually the case.
The following "grandfather" clauses contain limitations of time within which the applicant must seek his license: Accountants, Ga. Code Ann. 84-215 (Ga. Laws 1943, pp. 363,366, as amended); Funeral Directors and Embalmers, Ga. Code Ann. 84-809(6) (Ga. Laws 1950, pp. 238, 244); Real Estate Brokers and Salesmen, Ga. Code Ann. 84-140 I (Ga. Laws 1956, p. 404, as amended); Engineers and Land Surveyors, Ga. Code Ann. 84-2121 (Ga. Laws 1945, pp. 294, 301); Physical Therapists, Ga. Code Ann. 84-3005 (Ga. Laws 1951, pp. 175, 178); Dispensing Opticians, Ga. Code Ann. 84-3508 (Ga. Laws 1956, pp. 148, 153); Sanitarians, Ga. Code Ann. 84-3711 (Ga. Laws 1957, pp. 219, 222); and Landscape

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Architects, Ga. Code Ann. 84-4019 (Ga. Laws 1958, pp. 400, 406). Thus, if the above licentiates fail to renew their licenses, they are not entitled to take advantage of the "grandfather right" by virtue of the later application not being made within the time allowed.
Similarly, the "grandfather clause" as to pharmacists is applicable only to "renewals", Ga. Code Ann. 79A-403 (Ga. Laws 1967, pp. 296, 310), not to the issuance of new licenses. As to librarians, it applies only to their "present positions", Ga. Code Ann. 84-2209 (Ga. Laws 1937, pp. 245, 247). See also Ga. Code Ann. 34-602.
The provision as to veterinarians (Ga. Code Ann. 84-1505) is as follows:
"Any person holding a valid license to practice veterinary medicine in this State on the date this Chapter becomes effective [July 1, 1965] shall be recognized as a licensed veterinarian and shall be entitled to retain this status so long as he complies with the provisions of this Chapter, including annual renewal of the license."
From the foregoing, it appears that the General Assembly has been aware of the problem you have before you, and has in years past, been aware of means by which it could deal with it when the legislators saw fit to do so.
In New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337 (1940), the Court said that if the statute is clear and unambiguous, no court has a right to construe it to mean other than what it declares. The Court went on to say that if the statute is unambiguous, its wisdom is a matter exclusively reserved to the legislature and is no legitimate concern of the courts.
In Burgess v. Frier, 183 Ga. 386, 389 (1936), the Court said that it cannot construe a statute contrary to the plain legislative intent on the ground that a better method might have been adopted.
The key phrase in the section under consideration is "now licensed." This expression has not been construed by the courts insofar as I have been able to determine. The word "now" when used in a statute has generally been construed by the courts to mean at the time the law takes effect. 28A Words and Phrases,

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"Now". This is in accord with the recent decision in Campbell v. Hunt, 115 Ga. App. 682 (1967), where our Court of Appeals held that the use of the word "now" in the charter of the City of Warner Robins in the phrase "as is now provided for . . ." in another law, preserved that other law as to Warner Robins even though it had been repealed insofar as it was itself concerned.

In order to bririg the provision under consideration into line with other "grandfather clauses," it would be necessary to add language of limitation or qualification.

In State Revenue Com. v. AlllXander, 54 Ga. App. 295, 296 (1936), the Court said that in construing a statute, courts can neither add to nor take away from it.

From the foregoing, it is my official opinion that the answer to your question is in the negative; i.e., a person entitled to "grandfather rights" under Ga. Code Ann. 84-4102(b) does not lose such rights by failure to renew his license.

OPINION 68-100 (Unofficial)

March 11, 1968

Your letter concerning Georgia laws on public warehousing has been referred to me for reply.
I regret that we are unable to furnish you this material in printed form, but I am pleased to briefly summarize the relevant portions of Georgia law for your information. The Georgia State Warehouse Act, Ga. Code Ch. 111-5, provides that certain types of warehouses must be licensed by the Commissioner of Agriculture and must file a bond with the Commissioner to secure the faithful performance of the warehouseman's obligation. Such bond must be not less than $5,000.00, but in no event shall the amount of the bond be required to exceed 12 percent of the value of the products stored in the bonded warehouse.
It should be noted that the Georgia State Warehouse Act defines "public warehouse" or "warehouse" as any building or enclosure at which any agricultural product is received from the public for storage for hire. Consequently, a warehouse utilized for storage of goods other than "agricultural products" as defined in the Act is not automatically covered by the provisions of the Act. However, any person operating a warehouse for storage or

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products other than agricultural products may elect to come within the provisions of the Act, and upon approval of the Commissioner of Agriculture may be licensed if the applicant agrees to comply the the provisions of the Act and any and all regulations promulgated thereunder.
Other provisions of the Georgia State Warehouse Act provide for inspection and inventory of warehouses by agents of the Commissioner of Agriculture, filing of schedules of charges by licensed warehousemen, insurance upon stored products, requirements for issuance or warehouse receipts, duties of warehousemen, and procedures for suspension or revocation of licenses issued under the Act for any violation or failure to comply with any provisions of the Act.
Since you did not state in your letter the type of goods with which you are concerned, I cannot say whether or not the storage of such goods would come within the scope of the Georgia State Warehouse Act. However, if the stored goods are not "agricultural products" and if the warehouseman does not elect to be licensed pursuant to the Act, the storage of such goods would not be covered by the Georgia State Warehouse Act and there would be no requirement for biling of a bond pursuant to the Act. The Georgia law pertaining to warehouse receipts appears in Ga. Code Ann. Chapter l09A-7, which is a codification of the Uniform Commercial Code. However, from the general tenor of your letter I presume that the operation to which you refer would involve a limited storage agreement and not involve the issuance of warehouse receipts.

OPINION 68-101 (Unofficial)

March 12, 1968

This responds to your letter requesting my opinion as to whether or not a member of the Sheriffs' Retirement Fund of Georgia may claim pursuant to Section 12 of the Act credit fot prior service as a full-time warden of a public works camp. Ga. Laws 1963, p. 630, 635, 12; Ga. Code Ann. 24-2812a.

My answer to your question must be in the negative because a public works camp warden is not a "peace officer" within the

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meaning of section 12 of the Act establishing the Sheriffs' Retirement Fund of Georgia (hereinafter "section 12").
No case has been found construing the term "peace officer" as used in section 12, but the appellate courts on several occasions have been called upon to rule whether or not a certain person was a "peace officer" within the meaning of section 8 of the Act establishing the Peace Officers Annuity and Benefit Fund of Georgia (hereinafter "section 8"). Ga. Laws 1950, p. 50, 53, 8, as amended; Ga. Code Ann. 78-901.
In Griffin v. Bass, 96 Ga. App. 892 (1958), certain persons, including guards at public work camps, were held to be "peace officers" within the meaning of section 8. This holding was based squarely upon a reading of section 8, which specifically defines the term "peace officer" as used in the Act to mean public works camp guards and wardens as well as peace officers. Section 12 merely uses the words "peace officer" without special definition for purposes of the Act, and does not specifically include within that term public works camp guards and wardens.
Within a few weeks after the decision of the Court of Appeals in Griffin v. Bass, supra, the Supreme Court concluded that a Public Service Commission motor-carrier inspector was not a "peace officer" under section 8 since such an employee is neither a guard nor warden as specifically set forth therein, nor a person who, within the restrictions of the law then applicable, gives his full time either to the preservation of public order, the protection of life and property, or the detection of crime. Board of Commissioners v. Clay, 214 Ga. 70 (1958). In support of this construction of former section 8, the Court wrote:
"This specific inclusion of guards and wardens clearly shows that the intent of the legislature was to exclude from the definition of 'peace officer' public employees or officers who, incidental to the primary duties of their employment, occasionally perform some of the services of a police officer." 214 Ga. 70, 72.
The latter quotation was cited and relied upon in Vandiver v. Endicott, 215 Ga. 250 (1959), to support a fuling that a Fire Marshal of the City of Atlanta was not a "peace officer" within the meaning of section 8. Further definitions of the term "peace officer" cited in support of the Court's decision are:

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''In general, it may be said that a peace officer is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime.... He is a conservator of the peace, which term is synonymous with the term 'peace officer'." 215 Ga. 250, 251.
The fact that the Marshal was invested by law with the powers of police officers and authorized to make arrests did not constitute him a "peace officer," held the Court.
The Clay and Endicott cases, supra, were relied upon by the Court in Connors v. Vandiver, 215 Ga. 371 (1959), to support a decision that a county health department employee was not a "peace officer" within the meaning of section 8. The petition in Connors alleged that the employee devoted his full time to duties consisting of making raids, arresting violators and taking other steps to prevent various forms of vice, but the Court held that his status as a "peace officer" must be determined from the authority conferred upon him by law and not from the services of activities which he in fact performed.
In Vandiver v. Manning, 215 Ga. 874 (1960) the Court distinguished its opinions in the three cases last cited, then ruled that an Adult Probation Officer of Fulton County is a "peace officer" under section 8. The subject probation officer performed certain duties specifically authorized by law, consisting of making and recording investigations, taking charge of probationers, and arresting probationers who violated the terms of their release. Justice Mobley dissented on the ground that the case was indistinguishable from the full-bench decision of the Court in the Endicott case, supra.
This office previously has ruled that certain Security Officers at Georgia Institute of Technology are full-time "peace officers" under section 8. Ops. Att'y Gen. 1960-61, p. 330.
Although a public works camp warden has all the powers of a police officer of th.is State, Ga. Code Ann. 77-315, and is granted authority to deputize persons to assist him in the performance of certain of his duties, Ga. Code Ann. 77-329, these facts are insufficient under the authorities cited above to constitute him a "peace officer" within the meaning of that term as used in section 12 of the Act establishing the Sheriffs' Retirement Fund of Georgia, which section, unlike section 8 of the

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Act establishing the Peace Officers Annuity and Benefit Fund, does not specifically define the term "peace officer" to include public works camp wardens.
I always regret the necessity of a negative ruling with respect to retirement law benefits because such statutes are beneficial and should be liberally construed to advance the governmental purpose of securing more efficient and desirable public employees. Griffin V. Bass, supra, at 896. But the retirement benefits of a public employee depend upon the terms of the legislative act creating the benefits and this office is without authority to enlarge or revise such statutory rights by legal c~nstruction. Burks v. Board of Trustees, 214 Ga. 251,254-55 (1958).

OPINION 68-102 (Unofficial)

March 12, 1968

This is in reply to your letter asking whether a person would be disqualified as a candidate for county office solely by virtue of having been indicted for Federal income tax evasion.

Ga. Code Ann. 34-107 provides that no person shall be eligible for party nomination for, or election to, public office if such person " . . . has been convicted and sentenced in any court of competent jurisdiction...." (Emphasis added) Accordingly, I do not believe that an indictment alone would disqualify a person as a candidate for public office.

OPINION 68-103 (Unofficial)

March 13, 1968

This is in reply to your letter to the Property Tax Division of the State Revenue Department wherein you attached a lease agreement relating to the lease of real property for ninety-nine (99) years for the purpose of installing a mobile home. You ask whether such property would be subject to the homestead exemption provided in the Georgia Constitution and Ga. Code Ann. 92-219, et seq.

There are several definitions for the term "Homestead". See Ga. Laws 1937-38, Ex. Sess. p. 145, 7, 8, as amended, (Ga.

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Code Ann. 92-232 and 92-233). Section 7 does not apply since it defines homestead to mean "real property owned by the applicant on January lst of the taxable year. . . ." Because here the applicant does not own the real property, he merely leases it for ninety-nine (99) years, with an option to purchase. Thus this section can be construed to mean that the applicant must have a fee interest in the property.
The next question is whether an interest less than the fee is subject to the homestead exemption. The answer is yes, as "homestead" is further defined in section 8(b) to include certain interests less than the fee interest, to wit:
"(b) Where the person who is the applicant holds the bona fide fee title, (although subject to mortgage or debt deed) or an estate for life, or holds under any bona fide contract of purchase providing for the conveyance of title to the applicant upon performance of the said contract, or holds under an occupancy agreement as a stockholder of a nonprofit cooperative ownership housing corporation, which holds property, either as owner or under a ninety-nine year lease, subject to a mortgage insured by the Federal Housing Administration under Section 213(a)(l) of the National Housing Act, 64 Stat. 54, 12 U.S.C. l7l5(e) (1950)."
While it is true that a lease for ninety-nine (99) years creates an estate for years rather than a strictly landlord-tenant relationship (See Ga. Code Ann. Ch. 85-8), and a lease is subject to ad valorem taxation of real property (Delta Air Lines, Inc. v. Coleman, 219 Ga. 12 (1963)), under the rule of strict statutory construction required in construing tax exemptions (Cherokee Brick and Tile Company v. Redwine, 209 Ga. 691, 293 (1953); Undercofler v. Capital Automobile Company, Ill Ga. App. 709 (1965)) the homestead exemption cannot be construed to apply to this particular lease which creates an estate for years.

OPINION 68-104 (Unofficial)

March 13, 1968

You ask whether the tax commissioner or the tax assessor has the duty to assess taxes against persons failing to return their

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property for taxes by the April 1st deadline, and make out returns for such delinquent taxpayers.
In an Act approved March 17, 1960, (Ga. Laws 1960, p. 2920) the offices of tax receiver and tax collector of Harris County were abolished and consolidated into the single office of Tax Commissioner of Harris County, and I call your attention to Ga. Code Ann. 92-6601 which reads in part, as follows:
"92-660 1. Defaulters to be doubly taxed.-1 f a person fails to make a return, in whole or in part, or fails to affix a value to his property, the receiver shall make the valuation and assess the tax thereon, and in all other respects make the return for the defaulting person from the best information he can obtain...." Since the Tax Commissioner of Harris County has acceded to the duties of the tax receiver of Harris County, it would appear then, that he has the duty to prepare a return for persons failing to file returns by the April 1st deadline, and assess taxes against such persons from the best information available to him.
However, in addition to Ga. Code Ann. 92-6601, in Ga. Code Ann. 92-6913 the board of tax assessors is also given the power to ascertain what property, real and personal, is subject to taxation in the county and to require its proper returns for taxation.
The difference between the two sections is that tax receivers can levy a double tax as penalty, but the assessors can only levy a 10% penalty. "Code Section 926913 does not in any way repeal by implication any of the duties of the tax receiver to make assessments in cases of default under Code 92-6601, but it merely provides further safeguards to insure that all proerty shall be taxed." Sutties, Tax Commissioner, &c. v. The B-X Corporation, 212 Ga. 221 (1956).
Accordingly, then, either you or the tax assessor may prepare a return and assess taxes against delinquent taxpayers, failing to return their property for taxation by the April 1st deadline.

OPINION 68-105 (Unofficial)

March 11, 1968

This is in reply to your letter asking for the applicable and controlling law regarding the dates within which a person may

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qualify for the Democratic primary election to be held September 11, 1968.
The Georgia Election Code provides that candidates for party nomination in a general primary shall qualify in accordance with the rules and dates set by the executive committee or other rule making body of the party but, in any event, at least ninety (90) days prior to the date of such primary and not more than 135 days prior to such primary. Ga. Code Ann. 34-1006.
It is necessary to compute the ninety (90) days prior to the primary in accordance with Ga. Code Ann. 34-105 which requires that the full number of days be counted in determining a deadline such as that found in Ga. Code Ann. 34-1006. Thus computing the dates set by law within which the party must set its qualifying dates, l find it to be the period April 29, 1968, through June 12, 1968. I am unable to express any opinion, however, as to whether the Toombs County Democratic Executive Committee has authorization from the State Democratic Party to set qualifying dates for candidates as that is a question which addresses itself to the Party and not this office.

OPINION 68-106 (Unofficial)

March 13, 1968

Your question generally is concerned with what you refer to as the "Georgia Plat Act" and the "Planning and Zoning Commission Act of 1947 ." Specifically, you ask: "Which takes precedence over the other in regard to the authority and duties of the city engineer or the county engineer as to approval and signature of the plat of survey of lots?"
I have reviewed both the "Georgia Plat Act" (Ga. Laws 1933, p. 193, as amended), and the "Planning and Zoning Commission Act of 1947" (Ga. Laws 1947, p. 78), and find that said Acts are not in conflict relative to the recording of plats by the Clerk of the Superior Court. In the cases in which each of said Acts would be applicable to a particular county (see, Ga. Laws 1933, p. 193, as amended, 4; see also Ga. Laws 1947, p. 78, 1), the requirements of the respective Acts that a subdivision plat be approved and signed by some municipal or county authority prior

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to recordation would have to be complied with. No conflict would be created by the fact that both of said Acts were applicable simultaneously. In such event, the provisions of each relative to the approval and signing of plats prior to recordation could be satisfied without offending the other.

OPINION 68-107 (Unofficial)

March 13, 1968

You have asked for my opinion regarding a special election to fill the position of Ordinary for Troup County. Specifically you have asked whether, as acting Ordinary, you have, with regard to the special election, those duties and responsibilities enumerated in Ga. Code Ann. 34-401 or whether the conduct of the election is the responsibility of the clerk of the Superior Court pursuant to Ga. Code Ann. 24-1707.

It is an established principle of law that where there is a conflict between two Code sections, the courts will be guided by that which is the latest expression of the General Assembly on the subject. Atlanta Finance Co. V. Brown, 187 Ga. 729 (1939). Ga. Code Ann. 34-401 was adopted by the General Assembly as part of the Georgia Election Code in 1964. Ga. Code Ann. 24-1707, on the other hand, was first enacted in 1851-1852 and was last amended in 1951. Consequently, it is clear, I believe, that you, as acting Ordinary and not the clerk of the Superior Court, are responsible for those duties enumerated in Ga. Code Ann. 34401.

If there is any doubt in your mind as to whether a specific action is required by Ga. Code Ann. 34-401, I would suggest that as a practical matter, you may find it desirable to take such action jointly with the clerk to avoid any unnecessary conflict.

Finally, I note in passing that Ga. Code Ann. 24-1707 provides that the special election shall be held twenty (20) days from the order setting the same. This time limit has been, I believe, superseded by Ga. Code Ann. 34-806 and 34-105 providing that thirty (30) full days must intervene between the call of a special election and the holding of same.

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OPINION 68-108 (Unofficial)

March 13, 1968

This is in reply to your recent request for an opinion on whether or not under the new provisions for the payment of fees to justices of the peace in Ga. Laws 1967, p. 469, a justice of the peace is entitled to $4.00 for a warrant issued against an offender for the offense of driving under the influence or whether or not he is entitled only to 50 cents for the issuance of such a warrant. Also, you requested as a subsidiary question whether or not driving under the influence is a traffic offense.
The provisions of Georgia law relating to the offense of driving under the influence are found in the motor vehicle section of Ga. Code Ann. Title 68. In the editorial note preceding the provisions of Ga. Code Ann. ch. 68-15 it is stated that Ga. Code Ann. Chs. 68-15, 68-16 and 68-17 form the basis for the law the short title of which is the "Uniform Act Regulating Traffic on Highways."
Specifically in regard to the question involving the offense of driving under the influence the following Code sections of the motor vehicle title are relevant:
Ga. Code Ann. 68-1601 provides:
"The provisions of this law [Chapters 68-15 through 6817; 68-9926, 68-9927] relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:
"1. Where a different place is specifically referred to in a given section. "2. The provisions of sections 68-1618 through 68-1625 and 68-9927 shall apply upon highways and elsewhere throughout the State,"
Ga. Code Ann. 68-1625(a) provides in part:
"It is unlawful and punishable as provided in section 689927 for any person who is under the influence of intoxicating liquor to operate or drive any vehicle."
Ga. Code Ann. 68-9927 provides:
"Every person who is convicted of a violation of section

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68-1625, which prohibits persons under the influence of intoxicating liquor or drugs from driving vehicles, shall be punished by imprisonment for not less than lO days nor more than 12 months, or by fines of not less than $100 nor more than $200 or by both such fine and imprisonment, and the court in its discretion shall have the power to revoke for any period of time not exceeding two years the license of any person convicted under this section for the first or second offenses, and shall have the power to reinstate said license at any time, but this power to reinstate licenses shall in no way affect persons convicted for third and subsequent offenses. On a third or subsequent conviction when the two last prior convictions have occurred within the four years immediately preceding such third conviction he shall be punished by imprisonment for not less than 20 days nor more than 12 months, and, in the discretion of the court, a fine of not more than $1,000, and upon a third and subsequent conviction when the two last prior convictions have occurred within the four years immediately preceding such third conviction his driver's license shall be revoked for two years."
Ga. Laws 1967, p. 469, 471, set forth the fees that are to be paid to the justices of the peace for the issuance of criminal warrants:
"The following shall be the fees for justices of the peace of this State and it shall be lawful for said justices to charge and collect the same: . . .
"Each criminal warrant issued except warrants issued for offenses under the Uniform Act Regulating Traffic on Highways . . . . . . . . . . . . . . . . . . . . . $4.00 "Each criminal warrant issued under the Uniform Act Regulating Traffic on Highways . . . . . . . . . $ .50''
It is to be noted that the above-quoted provisions of Ga. Code Ann. 68-1601, 68-1625, and 68-9927, are contained within that part of the motor vehicle title which is designated as the "Uniform Act Regulating Traffic on Highways." Therefore, since the offense of driving under the influence is established under the Uniform Act Regulating Traffic on Highways and, furthermore, since the new 1967 Act providing for the fees for justices of the peace expressly provides that the justice of the peace

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can charge and collect only 50 cents for the issuance of a criminal warrant for violation of the provisions of the Uniform Act Regulating Traffic on Highways, then, it is my unofficial opinion that the justice of the peace is not entitled to and cannot collect $4.00 for the issuance of a warrant for the offense of driving under the influence.
In answer to your subsidiary question of whether driving under the influence is a traffic offense, I direct your attention to the case of Dodd v. State, 85 Ga. App. 589, 69 S. E.2d 784 (1952). Close scrutiny of this case with the accompanying citations therein will disclose that the appellate courts of this State considered the offense of driving under the influence as a traffic offense. Therefore, based upon the decision of the appellate courts of this State, it is my unofficial opinion that a charge of driving under the influence is a traffic offense.

OPINION 68-109

March 13, 1968

You asked my official opinion as to the legal position of Larry Realty Company, Inc. in refusing to consummate the subject sale and requesting a refund of the $5,000.00 deposited with their bid. Your letter indicates that the State of Georgia, acting through the State Highway Department and the State Purchasing Department, offered the subject property for sale to the highest bidder. Larry Realty Company, Inc. was a bidder and the amount of their bid was $76,166.66, and with that bid, Larry Realty Company, Inc. submitted a check for deposit in the amount of $5,000.00.

It appears from a copy of the bid proposal submitted with your request that a clause was included to the effect that deposits would be returned to the unsuccessful bidders immediately after opening of the bids. Additionally, it appears that after the bids were opened, but before the succ"essful bidder was notified that his bid or offer was accepted, the successful bidder, Larry Realty Company, Inc. notified the State Highway Department by letter that it wished to withdraw its original bid and make a new bid of only $66,000.00. Larry Realty Company, Inc. now refuses to consummate the sale at the bid price of $76,166.66 and has requested a refund of the $5,000.00 deposit. As I further

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understand, the State Highway Department is not willing to accept Larry Realty Company, Inc.'s new bid in the amount of $66,000.00.
The question, of course, is whether Larry Realty Company, Inc. may be entitled to a refund of $5,000.00 and this depends upon the question of whether an agreement to sell was ever made between the State of Georgia and Larry Realty Company, Inc. In this connection, I call your attention to the provisions of Ga. Code Ann. 20-108 which provides as follows:
"The consent of the parties being essential to a contract, until each has assented to all the terms the contract is incomplete; until assented to, each party may withdraw his bid or proposition."
The case of State Highway Department v. MacDougald Construction Company, 54 Ga. App. 310, dealt with a similar situation as that outlined in your request. In this case, MacDougald Construction Company bid on a State Highway Department of Georgia construction contract and with its bid forwarded a deposit which was provided in the bid proposal to be liquidated damages in the event that the State Highway Department should accept MacDougald's bid and then MacDougald should refuse to execute the contract. In this case, one additional fact was present which does not exist in the case of Larry Realty Company, Inc. in that the terms of the bid proposal provided that the State Highway Department of Georgia would be allowed a certain number of days for acceptance or refusal of each bid. However, it does appear that MacDougald withdrew its offer before the same was accepted by the State Highway Department. In this case, the court held that MacDougald was entitled to a refund of its deposit on the theory that an offer may be revoked or withdrawn at any time before its acceptance.
Even though by the terms of the proposal the offeree was allowed a certain number of days for its acceptance or refusal, the court reasoned that the making of the offer and the delivery of the deposit was made on a condition; the condition being that if MacDougald was a successful bidder, the State Highway Department would be allowed to retain the deposit. The court concluded that such an offer and the delivery of the money on

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such t:onditions were not supported by a valuable consideration to the offeror and that under such conditions, the bidder could revoke or withdraw its offer any time before acceptance.
I find the case of State Highway Department v. MacDougald Construction Company, supra, controlling in the circumstances of Larry Realty Company, Inc.'s offer and since their offer was revoked prior to acceptance, I feel that no agreement was ever reached between it and the State of Georgia for sale of the subject property, and accordingly, the ~eposit should be refunded.
Your request letter further asks that procedures be recommended which would prevent the reoccurrence of a loss of a bid. The first recommendation is practical to the effect that when bids are received and a bid is deemed acceptable, its acceptance should be conveyed to the bidder at the earliest possible opportunity. In this connection, it would be advisable to notify the bidder by a method such as United States Certified Mail, Return Receipt Requested, Deliver to Addressee Only, Special Delivery. In the proper circumstances, a telegram to the successful bidder may be warranted. In addition to one of the above methods, a telephone call to the successful bidder notifying him of the acceptance of his bid may support a notice of acceptance which may be conveyed by telegram or mail.
Additionally, while the MacDougald case, supra, does not say, it implies that if the bidder receives a valuable consideration in making its bid, then an agreement establishing the conditions of the bid may be reached. Thus, if the opportunity to bid is made a privilege for which the bidder must pay, a contract to reach a sales agreement may be effectuated between the offeror and the offeree. However, under this arrangement, I feel that there may be practical difficulties since bids of this character would be closed to only those persons who recieve notice of the bid proposal. Additionally, as a practical matter, bidders may be reluctant to bid when they must pay for the privilege of bidding.
The only other solution to your problem is for the State of Georgia to offer to sell at an established price and the bids then become an acceptance, at which time the agreement to sell is consummated.

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OPINION 68-110

March 13, 1968

You have requested my opmwn on whether any of the State departments, institutions or agencies can pay dues and membership fees in various State and national organizations from State appropriated funds. The Constitution of the State of Georgia, Art. III, Sec. VII, Par. IX (Ga. Code Ann. 2-1909) provides in pertinent part:

"The General appropriation bill shall embrace nothing except. .. the ordinary expenses of the Executive, Legislative and Judicial Departments of the Government. . . ."

Art. V, Sec. II, Par. II of the Constitution (Ga. Code Ann. 2-3102) provides that the General Assembly shall have the power to provide help and expenses necessary for the operation of the department of each executive officer. Art. VII, Sec. I I, Par. 1(1) (Ga. Code Ann. 2-5501(1)) allows the power of taxation to be exercised by the General Assembly for the support of the State Government and the public institutions. Art. VI I, Sec. IX, Par. l(b) (Ga. Code Ann. 2-6201(b)) directs the General Assembly to biennially appropriate the funds necessary to operate all the various departments and agencies, and meet the current expenses of the State for each of the next two fiscal years.

With the consent of the State Auditing Department, you approve the payment of dues and fees as follows:
(1) Membership is in the name of the State department, institution or agency; or
(2) Membership is in the name of an individual, but the individual is required by his State department, institution or agency to be a member of the organization as part of his employment.
No dues or fees are approved, in any instance, unless the organization is related to the functions of and assimilates information for the benefit of the State agency involved and the organization also performs other services beneficial to that State agency. Further, no membership dues or fees are approved to any

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individual except where he is required by his employment to be a member of the organization.
Based upon the preceding facts, I do not find any Constitutional provision, State statute or court decision which would prohibit such payment of membership dues and fees. It is therefore my opinion that such payment of dues and fees from properly appropriated State funds may be made. If you have any question on the application of the above guidelines to a particular situation, please let me know and I will be happy to render what help I can.

OPINION 68-111 (Unofficial)

March 14, 1968

You have requested my opm10n concerning the income tax consequence on certain transactions involving out-of-state financial institutions. You state that these institutions in transactions consummated outside of Georgia purchase loans secured by real property located in Georgia. The out-of-state institution maintains no office or employees in Georgia and does not negotiate the original loan.
You ask what would be the Georgia income tax consequences to the out-of-state institution in the event it becomes necessary that it foreclose on Georgia real property and hold and operate the same for a short period prior to disposing of it.
The Georgia income tax is levied upon corporations "owning property" or "doing business" within the state. Ga. Code Ann. 92-3113. Therefore, the out-of-state institution would clearly be liable upon any income realized from real property located in Georgia upon which it had foreclosed.

Otherwise, the corporation is liable for income taxes only if it is "doing business" within the state. What is "doing business" can only be determined by an analysis of the individual transaction and the tax statute involved. For instance,. foreclosing upon property located within the state and operating it for a short time has under franchise tax statutes been held not to be "doing business". Gillin v. Hessig-Ellis Drug Co., 161 Ark. 386, 26 S. W.2d 122 (1930).

The only case under the Georgia Income Tax Act is Interstate

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Bond Co. v. State Revenue Commission, 50 Ga. App. 744 (1934). l n that case a Georgia financial institution was lending money secured by tax liens on real estate located in other states. Our court held that the entire income was derived from the use of its intangible property, to wit: its money, and that its income was not derived from the property located in other states which property was simply the security for the money which was loaned here in Georgia. This case appears to be the converse of your situation.
I conclude that the business of the out-of-state institution is that of lending money, not holding property. Therefore, the fact that the out-of-state institution incidentally forecloses on Georgia property and holds that property for short periods of time prior to disposing of it would not constitute "doing business" within the state under the income tax act and such activities while it would subject the income from the property involved to our income tax would not subject the out-of-state institution to income tax on that portion of its entire investment portfolio which incidentally happened to be secured by real property located in Georgia.

OPINION 68-112 (Unofficial)

March 14, 1968

Your request for information concerning the taxation of motor fuel and gasoline purchased by the Georgia Southern Area Planning and Development Commission has been referred to the Law Department for reply.

Planning commissions were authorized by the General Assembly of Georgia in 1957 (Ga. Laws 1957, p. 420; Ga. Code Ann. Ch. 69-12). That Act authorized any city or county or combination thereof to create such planning commissions to perform planning and zoning functions for the political subdivision creating them.
A Federal excise tax is imposed on gasoline sold by a producer, 4081 I.R.C. 1954; however, no tax is imposed on the sale to a State or local government for the exclusive use of a State or local government, 4221 (a)(4) I.R.C. 1954. This exemption would inure to the benefit of the Georgia Southern Area Planning .and

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Development Commission. Rev. Rule 57-254, 1957-l CB 383; Rev. Rule 58-61, 1958-1 C B 456.

No such exemption is available with respect to the State motor fuel tax. Sloan v. Polk County, 70 Ga. App. 707 (1944).

OPINION 68-113 (Unofficial)

March 15, 1968

This is in response to your request for opinion concerning the validity of Senate Bill 394 enacted at the 1968 Session of the General Assembly just concluded, which was signed into law by the Governor, we understand, on March 12.

The Act provides for increasing the number of County Commissioners of Berrien County to seven members.

You have pointed out that Section 2 of the Act provides that the Ordinary of Berrien County shall call for a referendum, which shall be set for March 26, 1968.

Ga. Code Ann. 34-1331 makes the Georgia Election Code applicable to referendum elections. Ga. Code Ann. 34-809 provides, among other things, that every special election shall be held and conducted in all respects in accordance with the provisions of the Election Code and that at least thirty days shall intervene between the call of a special election and the holding of same.

As it now develops, it is not possible for thirty days to elapse between the call of the election and the holding thereof on March 26, 1968.

In the case of Studstill v. Gary, 216 Ga. 268 (1960), decided before the adoption of the new Election Code in 1964, the Supreme Court held unconstitutional an Act applicable to Dodge County setting the date for the primary election on the second Wednesday in May, where the general election laws of the State provided that such primary election be held at the time prescribed by the political party holding the same. This action by the Court was taken pursuant to Art. I, Sec. IV, Par. I, of the Constitution (Ga. Code Ann. 2-401) which provides that "Laws of a general nature shall have uniform operation throughout the State, and no

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special law shall be enacted in any case for which provision has been made by an existing general law."
In view of the foregoing, it is my personal belief that a court would declare invalid your referendum election if held on March 26, 1968. As to whether or not a court would approve an election held not on March 26, but after thirty days after the call of such election, I have been able to find no case directly in point. However, in the absence of a "saving clause" as to constitutional provisions, it is my view that a court could conclude that the Act is invalid as a whole and that an election held in compliance with Ga. Code Ann. 34-806 would not remedy the defect.
If the Ordinary does not call and conduct an election, the legal result will be the same as if the referendum failed to pass; i.e., S. B. 394 would not be operative.

OPINION 68-114 (Unofficial)

March 15, 1968

You request an unofficial opinion regarding the question of (1) Whether or not certain property of Rabun Gap-Nacoochee School is subject to ad valorem taxation, to wit:

(a) Property used for monthly rentals for bulk milk sales from its dairying operation; and (b) From a craft shop from which sales are made to the public.

And, (2) Whether or not the corporate property of Christian Spirtual Alliance is subject to ad valorem taxation, an organization which sells a magazine at retail in Clayton, Georgia.

In regard to your first question, this is to inform you that this office has previously rendered an opinion regarding the property of the Rabun Gap-Nacoochee School. At the time this opinion was rendered this office did not know what sort of property was involved. The opinion cited several cases which held in substance that land necessary to the actual needs of the school would be exempt from ad valorem taxation, but any land in excess thereof which was used for the purposes of producing income would not be exempt. In determining wehther the property is being used primarily for educational purposes, or to produce income, all

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relevant facts must be considered. It would appear from your letter of February 19, 1968, and your subsequent letter of March 7, 1968, that the milk property is used primarily for the purposes of producing income rather than for the purposes of an education. Accordingly, under the facts set out in your letter, such property would not be exempt from ad valorem taxation. As to the craft shop, if the property is used primarily to teach crafts and only incidentally to sell the products produced by the students, the property is exempt.
In answer to your second question we are concerned with two provisions of law: Constitution of Georgia, Art. VII, Sec. I, Par. IV, Ga. Code Ann. 2-5404, and Ga. Code Ann. 92-201). These provisions exempt all "places of religious worship or burial, and all property owned by religious groups used only for single family residences and from which no income is derived; all institutions of purely public charity. . . provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining, and operating such institutions; this exemption shall not apply to real estate or buildings other than those used for the operation of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereof. ..." (Ga. Laws 1946, p. 12, as amended; Ga. Code Ann. 92-201).
Although your letter does not specify what property is proposed to be exempt or under what provision of the constitution or Ga. Code Ann. 92-20 I such exemption is to apply, it would appear from the name of the organization that the property in question is not used for places of religious worship or burial or single family residences; therefore, I will assume that the exemption under consideration relates to the exemption of institutions of purely public charity.
Under the facts set out in your letter, I am unable to determine the exact nature of the property in question or its use by the organization; accordingly, I cannot advise you as to its taxability. However, I would advise you to read the case of Presbyterian Center, Inc. v. Henson, et a/., 221 Ga. 750 (1966), which case

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construed the exemption relating to institutions of purely public charity as it would be applied to property owned by religious institutions.

OPINION 68-115 (Unofficial)

March 18, 1968

You ask if the State of Georgia has an intangible tax (for a citizen of Georgia who owns stock outside the State of Georgia) and, if so, the rate thereof.

This is to advise you that Georgia does impose an intangible tax on the stock of certain corporations. Ga. Laws 1953, Nov.Dec. Sess., p. 379, 382-3, sec. 2(a) (Ga. Code Ann. 92-162(a)) imposes "a property tax . . . annually . . . on the first day of January of each year at the rate of $1.00 on each $1,000.00 of the fair market value of all stocks in foreign corporations and of all stocks in foreign domesticated corporations ... without deduction of any indebtedness or liability of the taxpayer. All stocks in foreign corporations and all stocks in foreign domesticated corporations . . . shall be, and are hereby declared taxable property except shares of stock explicitly excluded under the terms of Section 2 of the above entitled act, approved December 27, 1937, as amended: Provided that the stock of domesticated foreign corporations shall not be subject to the tax therein levied if such domesticated foreign corporations pay to the State of Georgia, or its political subdivisions, all taxes as now provided by law."

This tax is imposed on all Georgia domiciliaries regardless of whether such citizens are temporarily residing outside of the State, either voluntarily or involuntarily.

I am also enclosing for your information and use the Georgia Intangible Tax forms, and the book of instructions therefor.

OPINION 68-116 (Unofficial)

March 19, 1968

This acknowledges your request concerning the procedures for a liquor referendum suggested by the Morgan County Grand Jury.

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The procedures for calling such an election are contained in Ga. Code Ann. Ch. 58-10. Ga. Code Ann. 58-1003 provides that a petition of registered voters is necessary and must be signed by at least 35 percent of the voters qualified to vote at the preceding general election. The petition is presented to the ordinary of the county. The ordinary has the duty to determine whether the petition contains the signatures of the required number of voters. Sanders v. Mason, 197 Ga. 522 (1944). Should he be satisfied that it contains sufficient signatures, the ordinary calls for an election to be held within 30 days of the filing of the petition. The election may not be held at the time of the holding of any other election.
We have previously ruled that neither a city nor a county may engage in the sale of distilled spirits, as such activities are not authorized by law and are inconsistent with the beverage control act. See O'Neal v. Town of Whigham, 206 Ga. 511 (1950); Atlanta v. Henry Grady Hotel Corp., 220 Ga. 249 (1964).
Should an election be successful, the County is permitted to charge an annual license fee not to exceed $5,000.00 and, in addition, an excise tax on the sale of such beverages not to exceed eighty cents (80) per wine gallon. Ga. Code Ann., 58-1032 and 58-1038.

OPINION 68-117

March 19, 1968

This is in response to your recent request for my opinion as to the authority of the Department of State Parks to accept Federal development assistance in the amounts of $642,214.94 and $238,936.00 for the development of Fort Yargo and Mistletoe State Parks respectively.

Your letter indicates that the Department will be obligated to expend an amount equal to the Federal participation in each project, with the Federal share actually being a 50 percent reimbursement for each monthly payment made by the Department. It is my understanding that the Department has its required share of the funds presently available and that any construction contract under which expenditures are subsequently made will not fiscally obligate the State for a period in excess of one year.
Ga. Code Ann. 43-124 empowers the Department of State

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Parks to enter cooperative agreements with and accept grants from the Federal government in connection with the development of any State park. See Ops. Att'y Gen., 1952-53, pp. 142-145.
It is, therefore, my official opinion that the above-cited section authorizes the acceptance of Federal development assistance under the circumstances outlined in your request.

OPINION 68-118 (Unofficial)

March 21, 1968

This is in reply to your memorandum regarding Ga. Code Ann. Ch. 111-1 pertaining to bonded public warehousemen. I have previously examined the above-cited warehouse Act and find that its present validity is very questionable. Ga. Laws 1937-38, Ex. Sess., p. 390, which adopted the old Uniform Warehouse Receipts Law, stated in the caption that one of its purposes was to repeal Chapter 111-1 which was the 1933 codification of the 1899 Act. No additional reference to Chapter 111-1 was made within the body of the 1938 Act, but sections 59, 60, 61, and 62 of that Act
dealt with the same subject-matter as the 1899 Act and presumably superseded it.

The Uniform Warehouse Receipts Law was in turn repealed by the Uniform Commercial Code, Ga. Laws 1962, pp. 156, 427. If the old Uniform Warehouse Receipts Law had the effect of repealing the 1899 Act, the subsequent repeal of the Warehouse Receipts Law would not reinstate the 1899 Act.

In addition it seems clear that the subject of bonded and licensed warehouses is fully covered by the Georgia State Warehouse Act, Ga. Laws 1953, Nov. Sess., p. 412, (Ga. Code Ann. Ch. 111-5), and this Act would appear to preempt all matters pertaining to bonded and licensed warehouses. I would therefore be reluctant to refer anyone to the Bonded Public Warehousemen Act of 1899 since it is my belief that the 1899 Act is no longer effective.

OPINION 68-119 (Unofficial)

March 21, 1968

This is in reply to your request for my opinion concerning municipal ownership and operation of a beer and wine store. I

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understand that the Mayor and Council of the City of Sandersville asked you, as City Attorney, to request this opinion.
No municipality may, without express legislative authority, participate in a business engaged in the sale of alcoholic beverages. O'Neal v. Town of Whigham, 206 Ga. 511,513 (1950).
You have also asked whether or not the City could issue a single license and base the license fee on a percentage of the gross revenue produced, graduated so that it would leave the licensee with what would amount to a normal salary.
The Court of Appeals in the case of Crummey v. State, 83 Ga. App. 459, 463 (1951), held "a county has no right under legislative authority to engage in the liquor business on its own account, or to accept a share of the profits from anyone so engaged."
The Supreme Court of Georgia in the case of Atlanta v. Henry Grady Hotel Corporation, 220 Ga. 249, 257 (1964) stated, " . . . successful regulation and control of the liquor business is dependent upon the proper exercise of this (regulatory) authority 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 creates a conflict of interest which can only result in abuse of the power to license and in a breakdown of the regulation and control ofliquor. . . ."
It may well be that a plan to authorize a single license and to arbitrarily refuse to license any other applicant would violate the rule announced in Hornsby v. Atlanta, 326 F.2d 605 (1964).

OPINION 68-120 (Unofficial)

March 25, 1968

Pursuant to your request, I am attaching a copy of the House substitute to Senate Bill 364 which, among other things, provides for a salary of $18,000 per year for the solicitors general.

In answer to your question concerning the effect of this bill upon other laws providing for compensation to the solicitors

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general, such as in uniform reciprocal support of minor children cases, I believe that section l of the bill is controlling. You will note that section l of the bill provides that "the present compensation and method of compensation accruing to each solicitor general shall be abolished . . . ." Section 9 of the bill is a general repealer. It appears that the intention of the legislature was to provide a specified salary in lieu of all other compensation. It appears likely to me that prior bills providing for the compensation of solicitors general would be repealed by implication by the present bill.

OPINION 68--121

March 25, 1968

This is in reply to your letter inquiring whether or not it is within the scope of authority of the Ocean Science Center of the Atlantic Commission (OSCA) to contract with a planning firm to develop a proposed land use plan for Skidaway Island. In your letter you stated that Skidaway Island is composed of some 6,842 acres of high land of which approximately 900 acres are to be donated to OSCA by private grantors and the remaining acreage of the island is owned by private interests.

It is my understanding that with the exception of a portion of Modena Plantation, which has been donated to OSCA, the island is totally undeveloped. At present there is no access to the island other than by ferry but upon completion of the Skidaway River Bridge, authorized by local referendum, the island will be subject to rapid development. Since your proposed oceanographic complex will likely be the first major project on the island, the planned development of the total island is certainly a matter of official interest to the Commission.

Among other powers, the Commission is granted the authority by Ga. Laws 1967, pp. 12, 16 (Ga. Code Ann. 43-l304(h)):

"To study and plan a complex which may include research, academic, industrial and other related activities conducted by: Local, State or Federal Government Agencies; the University System of Georgia or any of its component units; other public or private colleges and universities; nonprofit organizations; foundations; corporations; private business firms; and individuals."

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The above-quoted section seems to contemplate the planning and development of a complex in which both public and private organizations may participate, and which may possibly include operations conducted in cooperation with OSCA by private organizations upon property owned or leased by these individual organizations or firms. Because of the unique and relatively confined situs of the proposed oceanographic complex, undesirable development on the island might well be detrimental to the purpose of the Commission. You have also advised in your letter that the Chatham County-Savannah Metropolitan Planning Commission would provide OSCA with strong guidance in development of the proposed land use plan and would contribute significantly in services toward the study.
Considering the foregoing, it is my opinion that contracting for the development of a land use plan encompassing all of Skidaway Island is within the authority of the Commission and is related to its statutory purpose which is to plan, promote, and develop an oceanographic research complex.

OPINION 68--122 (Unofficial)

March 26, 1968

You ask my unofficial opinion concerning three (3) questions. These questions were as follows:

(1) Who has authority to close a public road? (2) If the County Commissioners ask the county maintenance personnel to stop working a road, would the Ordinary have authority to issue an order requiring the road to be worked until a hearing could be held on the closing of the road? (3) Who has jurisdiction to rule on questions involving the closing of a public road?

My review of Georgia statutes in this area discloses that Ga. Code Ann. 95-207 and 95-203 provide a procedure for the discontinuance of roads. For your information, these two (2) sections are quoted as follows:
"95-203. Persons in possession to be notified.-All persons, their overseers or agents, residing on land through which

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such road runs, except the applicants for the road or alteration, shall at the same time be notified in writing, personally or by leaving notice at their most notorious places of abode, that they may put in their claim for damages or be forever after estopped.''
"95-207. Discontinuance of roads.- Applications for the discontinuance of an old road, in whole or in part, shall be made to the ordinaries or other county authorities having charge of county affairs in writing, and published as provided in section 95-203, before the discontinuance shall be effective."
Please note that the application for discontinuance is to be made to the ordinaries or other county authorities having charge of county affairs. It would be my interpretation that the intent of this statute was that the application be directed to the governing body or to the authority which is charged with the general governmental administration of county affairs. Relating this to your specific situation, it would be necessary to determine whether the ordinary is still charged with administration of county affairs or whether local law has provided for the establishment of Commissioners of Roads and Revenues to fulfill this function.
Answering your second and third questions, it would be my opinion that the ordinary has no jurisdiction to issue an order for the road to be worked nor does the ordinary have jurisdiction to rule on any questions involving a closing of a road unless the ordinary is still the authority charged with the administration of governmental county affairs. The case of Wellmaker v. Lamar County Advisory Board, 43 Ga. App. 816 (1931), adds some insight into the problems which may occur in closing a public road. This case determined that a public road cannot be discontinued except in a manner prescribed by law after application, notice and registration in the proper office. Additionally, this case determined that where an old road has not been discontinued in a manner prescribed by law, the failure of the county authorities to work the road may be remedied by mandamus only to compel county authorities to keep up and repair the road as an established road. The court in this State having jurisdiction for petitions for mandamus is a Superior Court.

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As added information, the register referred to in the case of Wellmaker v. Lamar County Advisory Board, supra, would appear to be the public road register required to be kept by county commissioners or ordinaries by the provisions of Ga. Code Ann. 95-108.

OPINION 68-123 (Unofficial)

March 27, 1968

You request our opinion as to whether Art. I, Sec. 6, Par. 3 of the Rules and Regulations regarding highway rights-of-way would enable a law enforcement officer to direct the dispersion of individuals attempting to solicit business, such as wrecker or ambulance service.

You state in your letter that this problem relates to those operators of any ambulance service or wrecker service who cluster around a traffic accident in an attempt to offer unsolicited service. You further state that in one particular county, a police dispatcher notifies the closest service to the accident scene when an ambulance or wrecker service is required. But when arriving on the scene, the requested service often times finds its path impeded by other competitive services who are on the site attempting to contract with parties involved.

Art. 1, Sec. 6, Par. 3 of the Rules and Regulations for the Control and Protection of State Highway Rights-of- Way provides as follows:

"6-3. Display and Sale of Merchandise Prohibited
"The use of any part of the right-of-way of a State highway for the sale, purchase, exchange, display or storage of any merchandise including, but not limited to, produce, vegetables, nuts, beverages, fireworks, fabrics, novelties, souvenirs, handicraft articles, vehicle fuel and lubricants, or any other article, material or property is prohibited."

This is a restatement of statutory provisions on this subject. Certainly, your rules and regulations could not go further than the statutes. The answer to your question is, therefore, in the negative; i.e., that the above-quoted regulation is not applicable to the

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situation you describe. This is, in our judgment, a matter which addresses itself to the General Assembly.
1 can find no statute or case which would authorize a law enforcement officer to call a wrecker or ambulance service to the exclusion of all others.

OPINION 68-124 (Unofficial)

March 27, 1968

You state in your letter as follows:

"Due to the shortage of dirt on this project and an excess of dirt on the beginning portion of the next project, which is A PD-056-1 (13), Fulton, the Highway Department is considering an extension of the A PD-056-1 (I 0), Contract 1; F-056-1 (11 ), Contract 1, Fulton project which is currently un~er construction.
"The project under construction is 5.396 miles long. The total bid price was $4,762,467.75.
"Please render an opinion as to the legal limits imposed upon the Department in such an extension. Please note that this extension would be by Supplemental Agreement with the Contractor. He is willing to waive any contractual limits on extensions."

Ga. Code Ann. 95-1633, provides as follows:
"95-1633. Supplemental and extension agreements.-Said Highway Department shall be authorized to execute supplemental agreements to said original contract covering changes and/ or revised or new unit prices and items and supplementing the original contract not to exceed a 20 per cent increase in cost of the project and to execute extension agreements affecting the length of the project which may be increased by adding sections of said project or by relocation of said project not to exceed 20 per cent of the total length of the project or 20 per cent of total contract cost. (Ga. Laws 1949, pp. 373, 374.)"

Your question, therefore, is clearly answered in this statute, i.e., the contract may be extended under a Supplemental Agreement,

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not to exceed 20 percent of the total length of the project or 20 percent of total contract costs. I trust that this clearly answers your inquiry.

OPINION 68-125 (Unofficial)

March 27, 1968

You requested an unofficial legal opinion as to whether or not the Highway Department may legally spend public funds, estimated at $12,000, on additional drainage structures under the L. & N.'s tracks at a location downstream from proposed 1-753- U.S. 411 interchange.

Ga. Code Ann. Ch. 15 sets forth the general powers and duties of the State Highway Department of Georgia. Ga. Code Ann. 95-1504 dealing with control or highway work, designation of State-aid roads and funds, provides in part as follows:

" . . . The State Highway Department is authorized to construct and maintain such main outlet canals and ditches as will in its discretion provide adequate drainage of roadbeds and bridges in this State. . . ."

Necessarily included in the above-mentioned powers and duties of the Department would be the right to construct drainage structures to provide adequate drainage of roadbeds and bridges. Therefore, the State Highway Department of Georgia may expend public funds on additional drainage structures under the l.& N.'s tracks at the above-mentioned location, if, in the discretion of the State Highway Department, these additional drainage structures are needed to provide adequate drainage downstream from proposed 1-75-3- U.S. 411 interchange.

OPINION 68-126

March 27, 1968

You ask whether or not Ga. Code Ann. 77-318(c) (Ga. Laws 1956, p. 161, Ga. Laws 1957, p. 477) is applicable to any activity of any inmate in any institution operated by the State Board of Corrections. Ga. Code Ann. 77-318(c) provides that:

"Funds arising from the sale of goods or other products manufactured or produced by any prison operated by the

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State Board of Corrections shall be deposited with the treasury of the State Board of Corrections. Such funds arising from the sale of goods and products produced in a county public works camp, or from the hiring of prisoners shall be placed in the treasury or depository of such county, as the case may be."
As you know, the Georgia Prison Industries Administration, which was created by Ga. Laws 1960, p. 880 (Ga. Code Ann. 77-902) is a public corporation which is authorized to manufacture and sell goods, to utilize prisoners made available to it by the State Board of Corrections, and to retain its earnings for specified purposes. Ga. Code Ann. 77-904.
It is my opinion that Ga. CodeAnn. 77-318(c) is applicable to manufacturing operations conducted by a prison operated by the State Board of Corrections other than those manufacturing activities which are carried on by the Georgia Prison Industries Administration.
You have also asked whether or not the State Board of Corrections may pay inmates for performing services which are not part of the activities of the Georgia Prison Industries Administration pursuant to House Bill No. 742 which amends Ga. Code Ann. 77-313(c). The relevant portion of House Bill No. 742, which has not as yet been signed by the Governor, is as follows:
"Funds arising from the sale of goods or other products manufactured or produced by any prison operated by the State Board of Corrections shall be deposited with the treasury of the State Board of Corrections. Such funds arising from the sale of goods and products produced in a county public works camp, or from the hiring of prisoners shall be placed in the treasury or depository of such county, as the case may be. The State Board of Corrections is authorized, pursuant to rules and regulations adopted by said Board, to pay compensation of not more than twenty-five dollars ($25.00) per month from funds available to said Board to each prisoner employed in any industry."
It appears that the manufacture and production of goods is contemplated both by Ga. Code Ann. 77-318 and by those sections of the Code which deal specifically with the Georgia

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Prison Industries Administration. The word "industry" is defined by Webster's New International Dictionary, Second Edition as "any department or branch of art, occupation, or business; esp., one which employs much labor and capital and is a distinct branch of trade." Except in specified instances which are inapplicable here, the ordinary meaning of a word is to be applied in construing a statute. Ga. Code Ann., 102-102(1). Since manufacturing operations are contemplated both by prisons as ~uch pursuant to Ga. Code Ann. 77-318 and by the Georgia Prison Industries Administration pursuant to Ga. Code Ann., Ch. 77-9, it is my opinion that House Bill No. 742 would authorize the State Board of Corrections to make payments to inmates engaged in industrial operations conducted by a prison even though the activity is not a part of the operations of the Georgia Prison Industries Administration.

OPINION 68-127

March 27, 1968

You request my opmwn on whether a regulated certificated bank must pay the necessary recording tax when having a security deed recorded in the county where the real estate is situated.

Georgia law provides that State banks shall have the same immunities and exemptions from the payment of taxes as national banks. Ga. Laws 1953, Nov. Sess., pp. 379, 389; Ga. Code Ann. 92-183.

So far as I can determine, the Georgia courts have decided that national banks cannot be forced to pay the recording tax since these national banks are deemed to be instrumentalities of the federal government and therefore not subject to this State tax, absent congressional consent.

A case directly in point is Washington Loan and Banking Company v. Golucke, 212 Ga. 98, 90 S.E.2d 575 (1955), where the Georgia Suprell1e Court held that a State-chartered bank was not subject to this recording tax. The court based its decision on the fact that, under the authority of the federal cases cited in the opinion, national banks are not subject to the tax and it is the clear policy of Georgia to maintain competitive equality between national and State banks.

For the purposes of this opinion, I can see no difference between

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a State-chartered bank and a State regulated certificated bank. It is therefore my opinion that a regulated certificated bank will enjoy this immunity and exemption from taxation so long as national banks do.

OPINION 68-128 (Unofficial)

April 2, 1968

You requested advice as to whether it is necessary for the United States Olympic Committee to take any action in order to qualify to solicit funds in Georgia fvr use by the Olympic Teams.
For your information and use, please find enclosed two (2) copies 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 added.)

As you will note, the above-mentioned pamphlet contains the provisions of the Act for the "Regulation of Professional Fund Raising," as amended through 1963. There have been no amendments to these provisions since that date.
From the information contained in your letter, it would appear that your Committee is not exempt under any of the provisions of Section 3. However, since your letter does not fully explain the nature of your organization, I suggest that you consider filing for your Committee with Section 3 in mind.

Unless you conclude that your Committee is exempt from the regulations based upon the provisions contained in Section 3, a registration must be filed prior to solicitation.

Also enclosed for your use, please find two (2) sets of registration forms which should be completed and returned to the Georgia Secretary of State, if you conclude that your committee should register.
Additionally, for your information these regulations are also foundinGa.CodeAnn. 35-1001 to35-1011 (1933).

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OPINION 68-129 (Unofficial)

April 2, 1968

This is in response to your recent request for an opinion as to whether a regulation of the State Game and Fish Commission ceases to be valid and enforceable if removed from its place of posting at the courthouse door.
Ga. Code Ann. 45-115 provides in pertinent part:
"All rules and regulations promulgated by the State Game and Fish Commission shall have the force and effect of law upon complying with the following procedures:
"(a) The commission shall post at the courthouse door of the county or counties that will be affected, a complete copy of such rules or regulation [sic] certified by the chairman of the commission, and shall file, an additional certified copy thereof in the office of the ordinary of the county or counties affected, at least 30 days before the effective date of such rules or regulation [sic]."
You will note that the statute specifies that rules shall have the force and effect of law "upon complying with" the posting and filing requirements. The statute does not say that after such compliance the rules shall continue in effect only so long as they remain posted. It is my opinion, therefore, that once the posting and filing requirements are met, the rule is valid and enforceable.
To hold otherwise would lead to absurd results, e.g., the Commission's rules could be effectively repealed by any vandal who chose to rip them from the courthouse door.
There are presently well over 100 pages of the Commission's rules and regulations on file with the Secretary of State in accordance with the Georgia Administrative Procedure Act (Ga. Code Ann. Ch. 3A-l) which imposes filing requirements over and above those specified in Ga. Code Ann. 45-115. To require that this mass of paper be maintained in perpetuam at each courthouse door would constitute an intolerable burden which I do not believe can be derived from a fair reading of the statute in question. The

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construction of a statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465,470 (1928).

OPI~ION 68-130

April 2, 1968

This is in response to your letter requesting my official opinion on the following questions relating to the application for retirement benefits filed in behalf of Mr. J. W. Claxton, Membership No. 22082:
I. "Whether an Application for Involuntary Separation may properly be made under the circumstances, where an official has not been formally dismissed, whether the Board can appropriately consider or whether Mr. Claxton is, in fact, entitled to Involuntary Separation," and
2. "Whether the circumstances surrounding the case raise any proximate or probable circumstances indicating that the State has any claim against Mr. Claxton which would invalidate such application under the appropriate provision of law," and
3. "Whether there is pending in your office the investigation of any matter which would warrant the Board of Trustees further withholding action, as recommended in the Senate Resolution of March 4, 1968."

OPINION
I. An application for involuntary separation properly may be made under the circumstances and the Board of Trustees of the Employees' Retirement System of Georgia properly may consider such application.
2. The involuntary separation provisions of the Act creating the Employees' Retirement System of Georgia, as amended, will be applicable to Mr. Claxton's application for retirement benefits if Mr. Claxton satisfies the Board of Trustees of the System, by sworn testimony, that he tendered his resignation to the Governor of Georgia, not willingly by his own choice, in response to the Governor's public request for Mr. Claxton's resignation and in response to the action of the House Judiciary Committee in recommending that articles of impeachment be voted against Mr. Claxton.

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3. l am not aware of any possible claim by the State against Mr. Claxton which would invalidate under any provision of law Mr. Claxton's application for retirement benefits.
4. No investigation now is pending in this office which would warrant the Board of Trustees of the Employees' Retirement System of Georgia withholding action on Mr. Claxton's application for retirement benefits, as recommended in the Senate ~esolution of March 4, 1968.
Statutes providing retirement benefits for public officers and employees must be construed liberally in favor of sustaining a claim for benefits. City of Macon v. Herrington, 198 Ga. 576, 589 (1944), Burks v. Board of Trustees, 214 Ga. 251,254 (1958). The expression "involuntary separation" as used in the Act here under construction is defined as " . . . separation or release . . . not willingly by choice of member. ..." Ga. Code Ann. 402501(25). Therefore, the narrow legal question presented is whether Mr. Claxton's separation from State service constituted a separation or release not willingly by his choice.
The essential facts are these: On December 13, 1967, the Attorney General's "Report of Investigation of State Board of Pardons and Paroles" was made public. On January 9, 1968, a resolution urging impeachment of Mr. Claxton was filed in the Georgia House of Representatives. On January 19, 1968, the Honorable Lester G. Maddox, Governor of Georgia, publicly called upon Mr. Claxton to resign. On January 22, 1968, hearings were conducted by the House Judiciary Coml!littee with reference to impeachment of Mr. Claxton. On January 25, 1968, the House Judiciary 'Committee voted to pass by Committee Substitute House Resolution 383-867 articles of impeachment against Mr. Claxton, and the House Judiciary Committee Report on H.R. 383-867, Committee Substitute, was filed. On January 30, 1968, Mr. Claxton submitted to the Honorable Lester G. Maddox, Governor of Georgia, his letter of resignation. On January 31, 1968, Governor Maddox accepted Mr. Claxton's resignation by letter to Mr. Claxton. The Governor's acceptance of Mr. Claxton's resignation vacated the office. Ga. Code Ann. 89501(2); Patten v. Miller, 190 Ga. l23(1)(d) (1940).
Where a superior public official having appointing and removing authority over a subordinate public official requests the

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resignation of the subordinate official, which the subordinate not willingly by his o~n choice submits to the superior official, the involuntary separation provisions of the Act are fully as applicable as if the superior official merely had discharged or fired the subordinate. This rule is not different where, as in the i'nstance of Mr. Claxton, the appointing authority vests in the Governor, Ga. Code Ann. 2-3011, 77-501, 77-502, and the removing authority in the General Assembly, Ga. Code Ann. 2-1703, 2-1704, 2-1705, 2-1803.
This office previously has ruled in a published opinion that the words "involuntary separation"' as defined in Ga. Code Ann. 40-2501 (25) should be given their ordinary meaning, without straining for an extended connotation. Ops. Att'y Gen. 1962, p. 364.
Since an application for retirement benefits in behalf of Mr. Claxton would be proper under the involuntary separation provisions of the Act, if Mr. Claxton satisfies the Board of Trustees of the System, by sworn testimony, that he tendered his resignation to the Governor of Georgia not willingly by his own choice in response to the Governor's public request for his resignation and in response to the action of the House Judiciary Committee in recommending that articles of impeachment be voted against him, it necessarily follows that the Board properly may consider Mr. Claxton's request and adduce evidence to determine its merits.
This office has conducted extensive investigations of all circumstances surrounding Mr. Claxton's service on the State Board of Pardons and Paroles during recent years. Such investigations have not disclosed any circumstances indicating that the State may have any claim against Mr. Claxton which would invalidate under any provision of law his application for retirement benefits. Due to the exhaustive and comprehensive scope of those investigations, further or additional investigations into Mr. Claxton's affairs are not now being conducted by this office.

OPINION 68-131 (Unofficial)

April 3, 1968

This is in reply to your letter concerning Georgia laws pertaining to auctioneers and their licenses.

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Georgia does not have a general license statute in respect to auctions. The Uniform Commercial Code which has been adopted in this State makes reference generally to auction sales and licenses as required by Ga. Code Ann. Ch. 62-19 with respect to auction sales of livestock and by Ga. Code Ann. Ch. 84-17 with respect to auction sales of jewelry.

OPINION 68-132 (Unofficial)

April 3, 1968

This is in reply to your letter concerning a promotional scheme which your Company proposes in order to induce sales of your products within this State.
Ga. Code Ann. 26-6501 provides that any person who shall furnish any ticket or chance in any gift enterprise or lottery shall be guilty of a misdemeanor. This Code section was construed in the recent case of Boyd v. Piggly Wiggly Southern, Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967), to apply to a promotional scheme similar to the one you mentioned in your letter. It is my opinion that the enterprise you propose would be illegal in Georgia.

OPINION 68-133 (Unofficial)

April4, 1968

You request an unofficial opinion on the law regarding "pinball machines".
The general prohibitory criminal provision on the subject is Ga. Code Ann. 26-6502 (Ga. Laws 1877, p. 112) providing that "Any person who, by himself or another, shall keep, maintain, employ, or carry on any . . . scheme or device for the hazarding of any money or valuable thing, shall be guilty of a misdemeanor."

Although this law was passed before the advent of pinball machines, the Georgia Supreme Court in a unanimous decision has recently held that it makes illegal the operation of pinball machines "in which a free game [is] given the player if in the operation of the machine by the use of a coin he [achieves] a score

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that [entitles] him to a free play." Heath Sales Co. v. Bloodworth, 221 Ga. 567,570, 146 S.E.2d 275 (1965). The court there held that "obtaining the right of a free play is a thing of value and such category of machines is illegal." 221 Ga. at 570. However, pinball machines which did not offer a free play and which were "for amusement only," offering nothing of value for the price of playing, would not be condemned under the statute. 221 Ga. at 571. See also, Childs v. The State, 70 Ga. App. 99, 27 S.E. 470 (1943). Any betting on such a machine would, of course, be a misdemeanor under the general provision of the criminal code prohibiting gambling. Ga. Code Ann. 26-6404, (Ga. Laws 1859, p. 59; 1865-6, p. 233).

OPINION 68-134 (Unofficial)

April4, 1968

You have asked if the Oglethorpe County Democratic Committee can enter the names of the five members of the Oglethorpe County Board of Education in the forthcoming general primary and charge them a qualification fee therefor.

Normally, members of a County Board of Education are chosen by the grand jury. In Oglethorpe County, however, the members of the Board are elected by the voters of the whole county pursuant to a constitutional amendment ratified November 8, 1966, and pursuant to a local statute found in Ga. Laws 1967, p. 2370. Neither the aforesaid constitutional amendment nor local law conflicts in any way with the provisions of the Georgia Election Code and its provisions are therefore controlling with regard to election to any county office such as membership on the Board of Eduction. (Ga. Code Ann. 34104).

The Election Code provides that every candidate for office shall accompany his notice of candidacy with a nomination petition unless he falls within certain enumerated exceptions, one of them being party nomination by party primary. Ga. Code Ann. 341001 (c). Accordingly, I believe that if any of the candidates for membership on the Oglethorpe County School Board wishes to qualify as a candidate of the party, you may treat him as any other candidate for public office by charging him the same

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qualifying fee authorized by the rules of your party. If, however, the candidate chooses to accompany his notice of candidacy by nomination petition or, if he falls within one of the other enumerated exceptions, you would not be authorized to enter his name in the primary or to charge him a fee therefor.

OPINION 68-135

AprilS, 1968

This is in response to your request for an opinion as to the legality of expending State funds for the purchase of three-month subscriptions to Business & Securities News, an independent weekly business journal which focuses exclusively on Georgia's commercial activity, for certain out-of-state industrial prospects. The publication would be used as a promotional medium to provide repetitive advertising for the State of Georgia.

This office has issued a prior opinion regarding the authority of your Department to distribute gratuitously an item of promotional value which also has an intrinsic value apart therefrom. As pointed out in Ops. Att'y Gen. 1963-June 14, 1965, p. 558, the line of demarcation between legal and illegal expenditures is drawn at the point where the element of gift or gratuity outweighs the promotional message sought to be conveyed. If the element of gift is merely incidental to the dominant function and utility of the item in promoting the State, the expenditure is authorized. See also Ops. A tt'y Gen. 1960-61, p.471; 1962,pp.36,445.

Applying this rule to the instant case, it would seem that the intrinsic value of the publication is limited to the value of the paper upon which it is printed. In my estimation this intrinsic value derived by the recipient would be far outweighed by the promotional utility to the Department in attracting new industry to Georgia. Therefore, it is my official opinion such an expenditure is authorized.

OPINION 68-136

April 8, 1968

This letter is in answer to your request for an official opinion on the effect of the repeal of the provision in 14(d), Ga. Laws

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1956, p. 161, 173, requmng examination of mentally diseased inmates by a board of physicians created by Executive Order of the Uov~rnor.
Question l "Whether or not it is necessary r,r such inmate to be first ;' examined by a board of examining physiCians ~.;t~.-.,.~Qrl hv Executive Order of the Governor."
Opinion
No. The provision formerly requiring such procedure was explicitly repealed by Ga. Laws 1957, p. 477, 479, Ga. Code Ann. 77-310(d), and there is a judicial presumption that when the Legislature by later Act omits a provision of a former Act, it has knowledge of the former Act and intends the latter expression to control. See Central of Ga. Ry. Co. v. Keating, 45 Ga. App. 811 (1932).
Question I I
"Whether the State Board of Corrections is authorized to transfer mentally diseased inmates from the Georgia State Prison or other institutions operating under its authority to the criminal ward or facility of the Central State Hospital for the insane at Milledgeville, Georgia."
Opinion
Yes. This authorization is explicitly given in the terms of Ga. Laws 1957, p. 477, 479, Ga. Code Ann. 77-310(d). However, this authorization would not apply to inmates convicted of a capital felony. Ga. Code Ann. Ch. 27-26 governs the procedure to be followed in these instances whereby only the Governor may, within his discretion, have the inmate examined by expert physicians appointed by him. Ga. Code Ann. 27-2602, et. seq.
In all other cases the Board of Corrections is given full legislative authority to initiate and carry out the transfer. In other states the present method of trying the question is purely a matter of legislative regulation. See Ann. 49 A.L.R. 804, and Am. Jur., Criminal Law, 79. Also, the Due Process clause of the Fourteenth Amendment does not require a judicial hearing, Sables v. Georgia, 168 U.S. 398, 42 L.Ed. 515 (1897), or the

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appointment of counsel for this type of collateral proceeding. People v. Riley, 37 Cal. 2d 510, 235 P.2d 381.
Question III
" "Who in the State Board of oot rections is authorized to f,, ?determine whether or n"'t an inmate is mentally diseased and shr,ld uc: Lransrerred to the Central State Hospital?"
Opinion
The following provisions of Ga. Code Ann. Ch. 77-3 seem to indicate that the Director would have the authority to establish the procedure for determining this question under the authority of the Board of Corrections.
Ga. Code Ann. 77-310(a): "The Board of Corrections shall provide for the classification . . . of prisoners with respect to . . . mentally diseased inmates . . . ."
Ga. Code Ann. 77-307(b): "The State Board of Corrections shall adopt rules governing the ... treatment ... rehabilitation ... and hospitalization of all prisoners coming under its custody."
Ga. Code Ann. 77-305: 'The Director shall perform such other duties and functions necessary, or desirable, to carry out the intent of this Chapter . . . which he may be directed to perform by the State Board of Corrections."
Ga. Code Ann. 77-306: "The Director ... with the consent and approval of the State Board of Corrections, is hereby authorized to appoint and employ ... such experts and technical help as needed . . . ."

OPINION 68-137

April 8, 1968

This is in reply to your letter of April 2, 1968, wherein you ask: "Where the federal government purchases realty after January I from a private individual, are ad valorem taxes owed on the property for the entire year?"

In Georgia the liability for a particular year's ad valorem taxes accrues on January 1st of that year. See generally Hobbs v. .Vichols, 223 Ga. 639 (1967), Brown v. Nash, Tax Commissioner of DeKalb County, 216 Ga. 303 ( 1960). In the question asked by

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you the property, on January 1st, was owned by a private individual; and it is on this date that the tax liability accrued. The fact that the Federal government subsequently purchased this property would not change the amount of the tax liability, since there is no provision in the Georgia law to apportion ad valorem taxes among successive owners of the same property where such owners each owned the property for a portion of the year.

OPINION 68-138

April 8, 1968

You request an official opinion regarding the proper procedure to be followed where a company or other organization desires to lease State owned off-shore mineral properties. In your letter you state that the Mineral Leasing Commission as presently constituted has not had an official meeting.

Where such a commission has not formally convened, and has not, therefore, adopted rules or regulations defining procedure for submission of leasing proposals, the only information regarding procedure remains those legislative enactments relevant thereto.

Accordingly, it is my opinion that, prior to a meeting of and determination by the Mineral Leasing Commission as to the propriety of any proposal, the entity desiring a lease should submit application in writing giving the description or character of the area desired, as required by Ga. Laws 1945, pp. 352, 354 (Ga. Code Ann. 91-121). The foregoing provision additionally requires that such application be accompanied by a certified check in the amount of $50, deposited with the Commission as evidence of the good faith of the application, which sum is to be returned to an applicant bidding for and failing to secure the lease sought.

Upon receipt of an application to the Commission, the Director of the Department of Mines, Mining and Geology may cause inspection of the land to be made, including such geophysical and geological surveys thereof as may be ordered by the Commission. Ga. Laws 1945, p. 352 (Ga. Code Ann. 91-122). The permissive wording of this provision allows the Director of your Department, at his instance or that of the Commission, to direct such inspection as, in his discretion, is prudent.

The results of any inspection may then be reported to the

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Commission together with recommendations of the Director and his staff.
A meeting of the Mineral Leasing Commission should be called in the interim to draft the standard lease form required by Ga. Laws 1965, pp. 590,591 (Ga. Code Ann. 91-118).

OPI;\IION 68-139 (Unofficial)

April 8, 1968

This will acknowledge receipt of your letter along with the enclosed copy of House Bill No. 1385. In your letter you inquired as to whether the election procedure for the members of the Board of Education of Grady County, as established by H.B. No. 1385, violates the "one man, one vote" rule.

According to H. B. 1385, a new Board of Education of Grady County is created to be composed of one member from each of five education districts within Grady County. Furthermore, the legislation provides that each member shall be a resident of the education district which he represents but that the election for each of the five members shall be " . . . by the voters of the entire county." H.B. No. 1385, Section I (a).

Assuming for the purpose of this opinion only that the "one man, one vote" rule applies to a board of education (but see: A very v. Midland County. Texas. 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed. 2d 45 (1968)), and that the education districts are not equal in population, the question arises as to whether such violates the "one man, one vote" rule.

Under the provisions of H. B. 1385, the five members of the Board are elected by the voters of the entire county; i.e., are elected county-at-large; although the Bill requires that each member be a resident of the education district he represents. The United States Supreme Court has spoken on the question of whether such an arrangement of unequally populated districts, combined with a requirement that members reside in a district, although being voted upon county-at-large would be violative of the rule.

In Dusch v. Davis. 387 U.S. 112 (1967), the United States Supreme Court considered the appointment of a borough form of

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government established by the consolidation of the City of Virginia Beach and Princess Anne County, Virginia. The governmental form established provided for seven boroughs and a council composed of eleven members, four of which were elected at large without regard to residency while each of the other seven was required to be a resident of one of the seven boroughs, although elected by the voters of the entire city. The seven boroughs had unequal populations ranging from 733 to 29,048.
The Supreme Court reversed the judgment of the Court of Appeals which had held that the plan was viol-ative of the "one man, one vote" rule. The Supreme Court stated that:
The seven-four plan makes no distinction on the basis of race, creed, or economic status or location. Each of the eleven councilmen is elected by vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal ... by analogy the present consolidation plan uses boroughs in the city 'merely as a basis of residency for candidates not for voting or representation.' He is nevertheless the city's, not the borough's councilman ....
Thus, in view of the Supreme Court decision in Dusch v. Davis. supra, it is my unofficial opinion that if the "one man, one vote" rule applies to school boards, and if the education districts are unequal in population, but the election is county wide, such meets the constitutional requirements as to the "one man, one vote" rule.

OPINION 68-140 (Unofficial)

April8, 1968

This is in reply to your letter concerning the taxation of property owned by federal savings and loan associations in 1968.

Ga. Code Ann. 92-179 provides that federal savings and loan associations must return their net worth at full market value and defines net worth as:

"... all surplus, undivided profit and reserves exclusive of the minimum statutory federal insurance reserve.... "

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A reserve of five percent of all insured accounts is required by Federal statutes. 12 U .S.C.A. l726(b).
The net worth as defined above is subject to ad valorem taxation
" . . . in the same manner as other property is subject to taxation, ...."Ga. Code Ann. 92-182.
The Georgia General Assembly passed an Act which requires property to be returned at its fair market value and assessed at forty percent of its fair market value. Ga. Code Ann. 92-5703 as amended; Ga. Laws 1968, pp. 358, 359.
A federal savings and loan association should return its net worth as required by the above statutes and include all of its reserves, surplus and undivided profit except for the statutory five percent of accounts figure. The assessment must then be based on forty percertt of the fair market value of the net worth amount.
Your letter contained attachments indicating the amount your local Savings and Loan Association contended to be correct and another computation prepared by the Revenue Auditor. It is my opinion that the computation prepared by the Revenue Auditor is correct and the figures submitted by the taxpayer are not.

OPINION 68-141 (Unofficial)

April8, 1968

This is to advise you that the final dates for registration to vote in the general primary and general election of 1968 are as follows:

July 22, 1968
Last day for registering and transferring registrations for voting in the general primary. Ga. Code Ann. 34-625, 34-63l(b), 34-l402(c), and 34-105.

September 16, 1968
Last day for registering and transferring registrations for voting in general election except as shown for October 21, 1968, below. Ga. Code Ann. 34-611, 34-63l(b), 34l402(c), 34-105.

October 21, 1968 Last day for registering to vote for Presidential candidates

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in general election by persons moving into the county. Ga. Code Ann. 34-602, as amended in 1968.

OPINION 68-142 (Unofficial)

April 8, 1968

You inquire into the validity of a marriage solemnized in Georgia in the absence of a valid Georgia marriage license.
I would say that common law marriages are recognized in Georgia, e.g., Kicklighter v. Kicklighter, 217 Ga. 54, 58-59 (1951); Peacock v. Peacock, 196 Ga. 441, 446 (1943), and while the annotated Code of Georgia does provide for marriage licenses, see Ga. Code Ann. Ch. 53-2, compliance with the same is not essential to the validity of a marriage contract, Lefkoff v. Sicro, 189 Ga. 554, 560 (1939). Such provisions are, in other words, directory rather than mandatory respecting the marital relationship.

OPINION 68-142.1

April 8, 1968

You ask whether or not the State Board of Corrections would be authorized to pay $330.33 to the Hall County Hospital for the hospitalization of inmate Eugene Fountain. According to your letter Eugene Fountain was an inmate at the Georgia Industrial Institute at the time of this hospitalization. You have also advised me that the total bill for this hospitalization is $480.33 and that the Life of Virginia Insurance Company, Griffin, Georgia, has paid the hospital $150.00 on behalf of Eugene Fountain.
It is the responsibility of the governmental agency having physical custody of a prisoner to furnish him any needed medical and hospital attention. Ga. Code Ann. 77-309(e). Since the insurance company has already paid the hospital $150.00, it is my opinion that you may pay the hospital, upon presentation of their bill, the remaining amount of this claim which would be $330.33.

OPINION 68-143

April 9, 1968

You have requested my opm10n on whether the Supervisor of Purchases has the authority to purchase for the State certain

170
antique items to be used as interior decorations for State property. In many instances, the antique item is quite rare and can only be purchased from one dealer since no other dealer would have or could obtain that item.
The Supervisor of Purchases is charged, among other things, with the duty of canvassing all sources of supply and contracting for the purchase of all supplies, materials and equipment required by any of the departments, institutions or agencies of the State government. Ga. Code Ann. 40-1902(A).
If you receive a requisition for a particular antique item and you are convinced that no other suitable substitute item can be used, the law provides for solicitation of bids by allowing you to either advertise in a newspaper of State-wide circulation or adopt other methods of advertisement when you deem such other methods more advantageous for the particular item to be purchased. It should be noted, however, that regardless of the amount of the expenditure, you should solicit bids direct by mail from reputable owners of supplies. Ga. Code Ann. 40-1909.
If, after canvassing all available sources of supply, you find that only one dealer can supply the requisitioned antique item, and you are convinced that no other suitable substitute item can be used, it is my opinion that you can receive the bid from the single dealer who can supply the antique item in question.

OPI~ION 68-144

April 10, 1968

You refer to Ga. Code Ann. 32-914, 32-1020 and 322114 (imposing certain duties upon teachers with respect to the maintenance of daily pupil attendance records) and ask whether teachers could be relieved of this time consuming task through the use of automated equipment in place of the present cumbersome attendance registers.

Notwithstanding the administrative desirability to which you refer to "allowing the use of other forms of reporting to make possible employment of data processing equipment and other centralized record keeping to account for enrollment and average daily attendance in the public schools,'' I am reluctantly forced to conclude that until such time as the present statutes are modified, teachers may not lawfully be relieved of those positive

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duties which are imposed upon them by said statutes. I believe this conclusion to be required by the fact that the statutory language involved is clearly mandatory rather than merely directory. To illustrate, Ga. Code Ann. 32-1020 declares in part:
" ... each teacher shall keep an accurate account of the number of pupils entering the school room and the number of days of actual attendance. For this purpose the teacher shall be provided with a register by the local school authorities ... it shall not be legal to make the final payment to any teacher until complete reports and returns have been made to the superintendent of schools" (Emphasis added).
Ga. Code Ann. 32-2114 declares in part:
"All schools shall keep daily records of attendance, verified by the teacher making such record ...." (Emphasis added).
And finally, Ga. Code Ann. 32-914 provides:
"It shalf be the duty of the teachers to make and file with the county superintendent of schools at the expiration of each term of school, a full and complete report of the whole number of pupils admitted to the school during said term, ... the entire and the average attendance .... Until such report shall have been filed by a teacher, it shalf not be lawful for said county superintendent of schools to audit the account of said teacher for his or her services." (Emphasis added).
While nothing in this opinion is to be taken as indicating that a teacher could not utilize any device or equipment, including automated equipment, to assist her in complying with her statutory duties, I am forced to conclude that the statutory language would not permit the teacher to be relieved of such duties through a complete shift to some entirely different form of reporting based upon the use of data processing equipment and centralized record keeping.

OPINION 68-145 (Unofficial)

April 10, 1968

The facts, as I understand them, are as follows: Some of your voters' registration cards have not been signed by the voters whose

172
names appear on those cards. You have been writing these voters a form letter as follows:
"Dear ______
"As you know the voting laws have been made much more strict.
"Registration cards are now being used as a source of information by the Social Security Administration and the juror's names are also being taken from the voters registration list.
"For these reasons, the state and federal laws require that each card be filled out completely and signed by the voter.
"We are sorry to trouble you, but in order that you may be sure of not being denied your right to vote, it will be necessary for you to complete your registration card.
"The office of the Board of Registrars, which is located in the county courthouse, is open 9-12-1-5, Monday through Friday.
"Thank you for your cooperation."
A question has arisen as to whether or not you have the right to insist upon the signing of these registration cards. Ga. Code Ann. 34-612 provides as follows:
"Any person desiring to register as an elector shall apply to a registrar or a deputy and shall furnish such officer with information which will enable him to fill in all of the blanks appearing on the registration card. On completion of the form the officer shall administer the oath to the applicant and then have him sign it, and the officer shall then attest it. Upon request of the applicant, the officer taking the application shall read or repeat the oath distinctly to the applicant, and if the applicant cannot sign his name, the officer shall sign it for him, the applicant making his mark thereto."
See also Ga. Code Ann. 34-619(d) regarding absentee registration. The law applicable to voter registration in existence prior to the 1964 Election Code also required that the voter sign the registration card. Ga. Laws 1949, pp. 1204, 1209-1210; 1958,

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pp. 269, 276. Re-registration of all voters was required after the enactment of the 1949 law. Ga. Laws 1949, pp. 1204, 1206. Therefore, as to all voter registration cards in use today, the law is, and has been, that it must be signed by the voter.
It is my opinion that where a voter's registration card has not been signed by the voter, that such person is not a registered voter and that it actually is a misnomer to refer to him as a "voter"
Ga. Code Ann. 34-627(a) provides that:
"The board of registrars of each county shall have the right and shall be charged with the duty of examining from time to time the qualifications of each elector whose name is entered upon the list of electors, and shall not be limited or estopped by any action previously taken."
The remainder of Ga. Code Ann. 34-627 provides the procedure to be utilized by the registrars. See also Ga. Code Ann. 34-614.
Thus, in view of the foregoing, it is my unofficial opinion that you have not only the right but the duty to secure the signatures of the voters on their registration cards.

OPINION 68-146 (Unofficial)

April11, 1968

You ask whether a levy may be executed on a home to satisfy delinquent motor vehicle ad valorem taxes when the owner thereof has obtained a homestead exemption, and has previously disposed of the motor vehicle.

It appears from your letter that you are referring to the homestead exemption for ad valorem taxes provided for in Art. VII, Sec. I, Par. IV of the 1945 Georgia Constitution (Ga. Code Ann. 2-5404). See Ga. Laws 1946, pp. 12, 14 (Ga. Code Ann. 92-219). Those provisions have no application to the problem you have presented. The homestead exemption which would be in point is provided in Art. IX, Sec. I, Par. I and II, (see also Ga. Code Ann. 51-101, Ch. 51-9 and 51-13, and Ga. Code Ann. 51-1502).

In answer to your letter, you are quite correct in determining that the levy for delinquent motor vehicle ad valorem taxes can

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be executed against the homestead. "A homestead is liable to be sold under fi. fas. against the head of the family for all his taxes of every kind and description." Lamar v. Sheppard, 80 Ga. 25(3) (1887).*

OPINION 68-147 (Unofficial)

April II, 1968

This is in response to your recent request for my opinion as to your eligibility to serve as Honorary Consul in Atlanta while simultaneously holding the position of member of the Bo~rd of Commissioners of the Department of Industry and Trade.

"The right of a citizen to hold office is the general rule, and ineligibility, the exception. A citizen may not be deprived of the right to hold office without proof of some disqualification specifically declared by the Constitution or statutory law." McLendon v. Everett, 205 Ga. 713 (1949).

However, an examination of the relevant statutes discloses an impediment which would preclude you from holding the plural offices in question. Ga. Code Ann. 89-101 provides inter alia:

"The following persons are held and deemed to be ineligible to hold any civil office, and the existence of any of the following states of facts shall be sufficient reason for vacating any office held by such person . . . , viz: . . .

4. Persons holding any office ofprojit or trust under the government of the United States (other than that of postmaster and officers 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." (Emphasis added.)

A consul is a commercial agent, with public functions, accredited to the national government by a foreign power. 3 C.J.S., Ambassadors and Consuls I. "Honorary," as applied to an office, means without profit. 67 C.J.S., Officers 3. While the position of Honorary Consul would not be an "office of profit," it would be an office of "trust," as that term is used in Ga. Code Ann. 89-101.

*See supplemental opinion 68-162.

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"The posllwns of consuls are trusts to be exercised from considerations of duty and for the public good. Whenever other considerations are allowed to intervene and control their exercise, the trust is perverted and the community suffers. Although a consul is sometimes permitted to engage in business of his own in the country in which his consular office is situated, the fact that he is the public agent and commercial representative of his own [the appointing] country precludes him from undertaking any affairs or assuming any position in conflict with its interests or policy." 4 Am. Jur. 2d, Ambassadors and Consuls II. (Emphasis added.)
It is, therefore, my opinion that these offices are incompatible and that the acceptance of the position of Honorary Consul would automatically vacate your position on the Board of Commissioners of the Department of Industry and Trade. McWilliams v. Neal, 130 Ga. 733 (1908).

OPINION 68-148

April 12, 1968

You ask whether the value of seven state owned dwellings and two State office buildings located on timberland owned by the State in Ware County are to be included in determining the amount of the grant authorized for each county in the State in which there is located 20,000 or more acres of land belonging to the State of Georgia from which such county receives no revenues. Ga. Laws 1963, p. 166 (Ga. Code Ann. 92-3913, and 923914).

The problem presented is one of statutory construction. The cardinal cannon of construction of a legislative act is to determine the legislature's intention. Undercojler v. Capitol Automobile Co., Ill Ga. App. 709 (1965). "The intention of the legislature, as it manifestly appears in a statute, must be carried into effect, although the precise and literal sense of the terms may be different." State v. Livingston, 222 Ga. 441 (1966).

What then was the legislative intent in the above cited act? One method of determining this intent is to look at the old law, the evil, and the remedy. Wall v. Youmans, 223 Ga. 191 (1967). The evil was that great tracts of taxable property had been removed from the tax digests of counties, thus substantially reducing such

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counties' revenues. Since the Constitution of Georgia precluded the taxation of such property by counties, the General Assembly decided to replace this lost income by means of a grant approximately equal to the amount of the lost revenue. However, the General Assembly also recognized that the State owns property in every county; and where the loss of revenues is probably insubstantial then no substantial evil exists. Thus they qualified the grant to only those counties in which the State owns at least 20,000 acres. The only counties in which such large tracts are owned are counties in which there are large amounts of unimproved timberland in the form of state forests.
If the Act were to be construed literally then it could be said: If the State owns at least 20,000 acres of land in a county, then the value of all State property located in that county should be used in determining the size of the grant to be paid by the Forestry Commission.If this is the case then the value of such State property in the County as State Patrol Posts, Armories, Highway Department Barns, State Parks, and State Buildings utilized by the University Board of Regents would be included in determining the amount of the grant. These same type structures are situated in counties not eligible for the grant. The result would be substantial inequitable treatment among the counties.
Accordingly, it is my opinion that the only property to be valued in determining the amount of the grant is the unimproved property; and the value of any structures situated thereon is not to be considered.
In addition I would point out one other item. Since the legislature's intention was to grant to certain counties funds approximately equal to the amount of revenue lost by the property not being on the tax digest, the l/4 mill State ad valorem tax should not be included in computing the grant. This revenue is remitted to the State, not the county.

OPINION 68-149

April 12, 1968

This is in reply to your letter of recent date concerning certain questions posed by you regarding the control of Outdoor Advertising Law, Ga. Laws 1967, p. 423, et seq. In your letter, you state:

"On occasions, in administering the control of outdoor

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advertising as prescribed in Act No. 271, Ga. Laws 1967, it will become necessary for tne State Highway Department personnel to go off the State highway right-of-way to remove advertising signs which have been erected and are being maintained contrary to the above described Act.
"It is requested that an official opinion be rendered to determine the degree of authority in which is provided the State Highway Department to enter upon private property for the purpose of removing advertising signs which have been erected contrary to the provisions of Act No. 271, especially those signs erected on trees."
You then ask the question:
"Should it become necessary for the State Highway Department to remove an advertising sign with its own forces, what procedure would be required for the storage and disposal of such sign if the sign owner does not claim it?"
Section ll(a) and (b) of said Act provide as follows:
"Section ll. Remedies: (a) The Director of State Highway Department of Georgia is hereby authorized to remove any sign erected or maintained in violation of the provisions of this Act after thirty (30) days' written notice to the person erecting or maintaining the sign or device, and the cost of such removal shall be borne by the offender and such cost shall be paid to the State Highway Department.
"(b) The Director and such other personnel of State Highway Department as shall be designated by the Director and all law enforcement officers are hereby authorized to enter upon private property for the purpose of inspecting and removing signs."
This Act, therefore, gives personnel of your department ample authority to go upon private property to remove those signs which are in violation of this law. However, I suggest that, if possible or practical, before entering upon private property, that both the written (as required by this law) and oral notice be given to the land owner and owner of the sign of the intention of Highway

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Department to remove the sign within a certain period of time, if it is allowed to remain.
With reference to signs erected on trees, I call your attention to Section 6(d), which provides:
"Permits shall not be issued for the following signs, displays or devices:
"(d) Signs that are not securely affixed to a substantial structure."
It would appear from this Section that a tree is not "a substantial structure" within the meaning of the Act.
You ask what procedure should be required for the storage and disposal of those signs removed by the Highway Department if the sign owner does not claim his property. I can find nothing in this law which permits the Highway Department to store and dispose of such sign. It would, therefore, be my recommendation that where the signs are removed by personnel from the Highway Department, they simply be dismantled and left on the private property to which they were affixed. If this procedure is used, there would be no necessity for further notice to anyone.
Your last question is as follows:
" . . . what procedure should be followed if the sign owner or property owner prohibits Highway Department personnel from removing an advertising sign?"
By prohibit, I assume you mean force or threats to personnel of the Highway Department. If this is the case, you should contact me or one of my assistants and do not attempt to remove the sign or dismantle same from private property; i.e., without a court order or police protection.
If you have any additional questions on the application of the above questions to any particular situation, please advise and I shall be happy to render whatever assistance that may be needed.

OPINION 68-150

April 12, 1968

This is in response to your recent request for an official opinion as to the eligibility and authority of the State Planning Bureau to

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apply for and administer a grant under Title VI I I of the Housing Act of 1964 (20 U.S.C. 801, et seq.).
To be in conformity with Federal requirements, you have asked that the opinion state specifically whether or not the State Planning Bureau has the responsibility and authority for the administration of a statewide research and training program in community development.
The State Planning Bureau was established by Ga. Laws 1967, p. 252 (Ga. Code Ann. Ch. 40-29) "for the purpose of promoting the orderly growth and development of the State of Georgia through the proper planning and programing of the affairs of State government."
To this end Ga. Code Ann. 40-2902(c), (d), and (g) authorize the State Planning Bureau, at the direction of the Governor, to:
"(c) Work to harmonize the planning actiVIties of all State departments, agencies and institutions, local levels of government, and other public and private bodies of the State.
"(d) Provide technical assistance in the development of planning programs by State departments, agencies and institutions, local levels of government, and other public bodies within the States ....
"(g) Apply for, receive, administer and utilize any grants or other financial assistance under ... Federal financial sources . . . ."
In an Executive Order dated January 26, 1968 Governor Maddox designated the State Planning Bureau as the State agency to administer a statewide research and training program in community development and receive grants under the Housing Act of 1964.
It is, therefore, my official opinion that the above cited statutory provisions and Executive Order authorize the administration of a statewide research and training program and the acceptance of a Federal grant in furtherance thereof as outlined in your request.

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OPINION 68-151 (Unofficial)

April 12, 1968

You request my op1n1on relative to whether the County Commissioners of Cobb County have the power under the law to enact a local leash law.
The Constitution of the State of Georgia was amended in 1966 so as to provide for home rule for counties. Ga. Laws 1965, p. 752, ratified, November 8, 1966. Pursuant to said amendment, Art. XV, Sec. II-A, Par. I (Ga. Code Ann. 2-8402) provides, at subsection (a) thereof 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 law applicable thereto."
Since your question is concerned with dogs which run unattended and which apparently are unowned, the relevant consideration is whether any action taken by the Commissioners of Cobb County would be in conflict with any general or local law. Research indicates that there is no general law relative to the containment of such dogs, and it appears that no law particularly applicable to Cobb County has dealt with the subject.
Therefore, it is my opinion that the Commissioners of Cobb County can pass a resolution on the subject of dogs running unattended and which apparently are unowned. It should be noted, however, that the general delegation of authority above referred to is restricted by subsection (c) of Georgia Constitution, Art. XV, Sec. 11-A, Par. I (Ga. Code Ann. 2-8402) which enumerates certain matters to which said power does not extend. I particularly would point out that said delegation of legislative authority to counties does not extend to any action defining any criminal offense or providing for criminal punishment. Consequently, any action taken by the Commissioners of Cobb County could not be penal in nature.

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OPINION 68-152 (Unofficial)

April 15, 1968

You requested an unofficial opinion as to the application of the "one-man, one-vote" rule to local elections.
In your letter you actually requested an opinion as to whether the recent Supreme Court decision applies to all city and county elections. However, since your primary request concerns Baldwin County and since the application of this rule to each local governmental unit must be considered separately according to the facts of each unit, I am taking the liberty of answering your request with an unofficial opinion as to the County Commissioners of Baldwin County only.
According to your letter, the Baldwin County Commissioners qualified by districts, i.e., no person may run for a position as county commissioner unless he is a resident of the district which he wishes to represent. However, you also state that the entire county votes on each commissioner.
Finally, you state that the population of such districts ranges from approximately 16,000 to about 500.
For the purpose of this opinion only, it is being assumed that the "one-man, one-vote" rule applies to county commissioners. In A very v. Midland County, Texas, 390 U.S. 474, 20 L.Ed.2d 45., 88 S.Ct. 1114 ( 1968), the United States Supreme Court held that " ... the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body." 20 L. Ed.2d 45, 53. In A very, the Court considered only units of local government wherein there were single member districts of substantially unequal population. Additionally, A very considered the application of the "rule" to County Commissioners Courts as such exist in Texas and that unit of local government differs in its powers, duties and responsibilities from the county commissioners in Georgia. Since for the purpose of this opinion there is no necessity to compare the County Commissioners Courts of Texas with the county commissioners of Georgia for a determination as to whether the county commissioners of Georgia are " ... units of local

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government having general governmental powers over the entire geographic area served by the body" and thus covered by the A very decision, no such comparison will be made.
A comparison is not necessary since the United States Supreme Court has spoken on the question of an arrangement of unequally populated districts, combined with a requirement that members reside in a district, although voted upon county-at-large.
In Dusch v. Davis, 387 U.S. 112, 17 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the United States Supreme Court considered the apportionment of a borough form of government established by the consolidation of the City of Virginia Beach and Princess Anne County, Virginia. The governmental form established provided for severn boroughs and a council composed of eleven members, four of which were elected at large without regard to residency while each of the other seven was required to be a resident of one of the seven boroughs, although elected by the voters of the entire city. The seven boroughs had unequal populations ranging from 733 to 29,048.
The Supreme Court reversed the judgment of the Court of Appeals which had held that the plan was violative of the "oneman, one-vote" rule. The Supreme Court stated that:
The seven-four plan makes no distinction of the basis of race, creed, or economic status or location. Each of the eleven councilmen is elected by vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal . . . by analogy the present consolidation plan uses boroughs in the city 'merely as a basis of residency for candidates not for voting or representation.' He is nevertheless the city's, not the borough's councilman....
Thus, in view of the Supreme Court decision in Dusch v. Davis, supra, it is my unofficial opinion that if the "one-man, one-vote" rule applies to Georgia county commissioners and the districts for such are unequal in population, but the election is county wide, such meets the constitutional requirements as to the "one-man, one-vote" rule.

OPINION 68-153

April 16, 1968

You have requested my official opinion on the following questions:

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"Does our law require that an Investment Trust file the Georgia return as a corporation or can it file a fiduciary return? When would the income be taxable to the corporation, and when would it be taxable to the recipients? When would it be taxable to both?"
A trustee, like all other fiduciaries, is taxable under our 1nco me Tax Law, Ga. Code Ann. 92-3103 Income Tax Act of 1931, as amended, Forrester v. Trust Co. of Georgia, 65 Ga. App. 167 (194~. Only certain types of trust are exempt, Ga. Code Ann. 92-3105 (k) (1) and (m), Income Tax Act of 1931, as amended. Therefore the question is whether any given trust is taxable as a trust under Ga. Code Ann. 92-3103 or whether it is taxable as a corporation because though called a "trust" it is in fact an "association" which is taxable as a corporation, Ga. Code Ann. 92-3002(d).
Our Income Tax Law defines a corporation to include an "association." An association has been equated to a company and described as a union of persons in a company or society for some particular purpose, Georgia Fire Association v. Borchardt, 123 Ga. 181 at 186 (1905). Whether an investment trust or any other trust is an "association" and therefore taxable under our law as a corporation rather than as a trust is to be determined by the facts peculiar to each case under consideration, Titus v. United States, 150 F.2d 508 (lOth Cir., 1945).
In the case of Morrissey v. Commissioner, 296 U.S. 344, 80 LEd. 263 (1935), the Supreme Court established the following standards to determine if any entity including a trust is an "association" and thus taxable as a corporation. The elements to be considered are:
l. Are there "associates" engaged in a joint enterprise?
2. Is their purpose to transact business and divide its profits?
3. Does the entity bear a close resemblance to a corporate organization by virtue of possessing the following characteristics:
(a) Title to property held by the entity (as opposed to the individuals who constitute the entity).

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(b) Centralized management of the entity conducted by a representative.
(c) Continuity of existence of the entity unaffected by the death of individual members thereof.
(d) The existence of beneficial interest (usually represented by some type of certificates) which are transferable.
These elements are generally the same as those found in a corporation or association under Georgia Law. The Georgia Income Tax Law deals with substance and not form. Therefore, where the entity which purports to be a "trust" is in fact an "association" (under the standards set forth above) then the entity as an "association" would be taxable as a corporation rather than as a trust. Ga. Code Ann. 92-3002(d).
Bear in mind that one of the prime characteristics that distinguishes a trust from a corporation or an association is the involuntary nature of the trust. For instance, there may be numerous beneficiaries of a single trust, the property having been placed in trust for them by some third party. As to the beneficiaries the arrangement is involuntary. On the other hand, in the ordinary "association" situation the participating individuals voluntarily enter into or continue the arrangement. This fact, to wit, the voluntary or involuntary nature of the entity, should be given great weight in determining whether a given entity is a "trust" taxable as such or an "association" taxable as a corporation.
The criteria set out hereinabove should be applied to each situation to determine if the entity is a "trust" or an "association". Once that determination is made the income would be taxable either to the association as a corporation or the beneficiaries or the fiduciary under general principles of law as set forth in the Income Tax Act. Ga. Code Ann. 92-3002(d), 923101, 92-3102 and 92-3103.
Your next question was:
"Section 108-602 of the Georgia Code Annotated states that when an estate is so created and from time to time thereafter the trusts or trustees shall issue such certificates of beneficial interest as may be provided for by said deed to the persons

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beneficially interested in such estate, or becoming interested, etc. Does this section mean that these certificates must be issued regardless of whether specified by the deed? Also, if they were not issued would the exempt status of the trust be affected as to the non-taxable status of the trust?"
Ga. Code Ann. Ch. 108-6 provides for the creation of a particular type of trust. It has been held that one of the primary features of this type of trust are the transferable shares that are , issued. Lrskine v. Klein. 218 Ga. 112 at 116 (1962). Apparently all of the provisions of Chapter 108-6 of the Code must be met and transferable shares must be authorized and issued in order for a trust to qualify under that Chapter. Erskine v. Klein. 218 Ga. 112 at 116 ( 1962). This same case holds that a trust which fails to qualify under Ga. Code Ann. Ch. 108-6 (because it does not contain all of the requirements specified) may nevertheless qualify as a trust under the general law of trust as otherwise prevails here in Georgia. Accordingly, even though a given trust may fail to qualify under Ga. Code Ann. Ch. 108-6 because there are no provisions for the issuance of certificates or because even though authorized none have been issued it may nevertheless qualify as a trust under the general provisions of law. In any event, trusts under Ga. Code Ann. Ch. 108-6 are to be judged by the same standards (set out above) as all other trusts in order to determine if the "trust" is an "association" and therefore taxable as a corporation under our law.
Under the Internal Revenue Code at least one particular trust established under Ga. Code Ann. Ch. 108-6 of our Code has been held to be an "association" and therefore taxable as a corporation. See Solomon v. Commissioner of Internal Revenue. 89 F.2d 569 (5th Cir., 1937). However, it does not follow that all such trusts created under this Chapter of our Code are taxable as corporations. As previously stated, each case must be governed by its own facts and in the light of the criteria set out above.
Your next question was:
"If the income was not distributed during the year, would the trust be liable for paying corporation tax on the income? Would the income have to be distributed or could it be shown as distributable and still exempt the trust from paying corporation tax rates on the income?"

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Whether the income of a particular trust is to be distributed or accumulated is purely a matter to be determined from the particular trust indenture and the mere fact that a given trust accumulates income is not in and of itself enough to hold that trust to be an "association" and therefore taxable as a corporation.
Whether the income of the trust is accumulated or distributed is simply one factor among many to be considered in determining whether the trust is an association taxable as a corporation.

OPINION 68--154

April 16, 1968

This is in response to your recent request for an opinion as to whether a member of a board of zoning appeals, authorized under Ga. Laws 1947, p. 420 (Ga. Code Ann. Ch. 69-12), may serve as a member of a county board of education.

"The right of a citizen to hold office is the general rule, and ineligibility, the exception. A citizen may not be deprived of the right to hold office without proof of some disqualification specifically declared by the Constitution or statutory law." McLendon v. Everett, 205 Ga. 713 (1949).

However, Ga. Code Ann. 69-1211, relating to the composition of boards of zoning appeals, provides in pertinent part:

"None of the members shall hold any other public office or position in the municipality or county, except that one member may be also a member of the planning commission."

A member of a county board of education is a county officer. Stanford v. Lynch, 147 Ga. 518 (1918). Therefore, it is my official opinion that there is a statutory incompatibility which would preclude a person frQm holding the plural offices in question.

OPINION 68--155

April 16, 1968

You ask whether the Alabama Power Company is required to file its annual property tax return with the State Revenue Commissioner.or with the Tax Commissioner of Floyd County.

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The Alabama Power Company owns 1,787 acres of land in Floyd County, Georgia, which is a part of the Company's Weiss Reservoir, together with a flood easement in an additional 3,180 acres. No customers are served by the Company in Georgia. The Revenue Department has followed the practice of requiring similar companies which have part of their reservoir in Georgia to file their property tax returns with the State Revenue Commissioner and such companies have in fact been filing with the State Revenue Commissioner.
Section 9 of the General Tax Act of 1935 (Ga. Laws 1935, pp .
11,64) provides in part as follows:
"All ... power, hydro-electric power ... companies ... shall be required to make annual tax returns of all property of said company located in this State to the Comptroller General [State Revenue Commissioner] . . . ."
Alabama Power Company is a "power" company or "hydroelectric power" company within the meaning of the Act requiring returns to be filed with the State Revenue Commissioner although it serves no Georgia customers. The Company's property located in Georgia is a part of its reservoir used for producing electricity distributed to its customers. As pointed out in Southland Steamship Company v. Dixon, 151 Ga. 216 (1920), the Act requiring returns to be made to the State Revenue Commissioner extended to all navigation companies, including those incorporated in other States, but having property in this State. The same rule applies to power companies. See also Undercofler v. Colonial Pipeline Company, 114 Ga. App. 739 (1966).
In conclusion, it is my opinion that the Alabama Power Company is a "power" company or a "hydro-electric power" company as is required by Section 9 of the General Tax Act of 1935 to file its annual property tax return with the State Revenue Commissioner.

OPINION 68-156 (Unofficial)

April 16, I968

I have researched the Georgia law in an effort to accumulate all statutes and constitutional provisions which in any way make

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reference to possible conflicts of interest arising out of positions of public trust. Enclosed herewith are copies of applicable constitutional and statutory provisions, and they consist of the following:
(1) Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-913 to 89-918) which deals with State employees and officials trading with the State.
(2) Ga. Laws 1959, p. 34 (Ga. Code Ann., Ch. 26-50), unofficially known as the "Honesty in Government Act," dealing with State employees engaging in transactions with the State. This Act is penal in nature.
(3) Ga. Laws 1964, p. 261 (Ga. Code Ann., Ch. 26-50A), dealing with the conduct of officers and employees of municipalities and other political subdivisions. This Act is an extension of the 1959 Act referred to in (2) above.
(4) Georgia Constitution, Art. I, Sec. I, Par. XXI I I (Ga. Code Ann. 2-123), dealing with the separation of powers of the three branches of government. In conjunction with this provision, see Ga. Laws 1959, p. 34, 37 (Ga. Code Ann. 26-5009), referred to in (2) above.
(5) Georgia Constitution, Art. VII, Sec. II I, Par. VI (Ga. Code Ann. 2-5606), dealing with the acceptance by public officials of profit on public money.
(6) Georgia Constitution, Art. II I, Sec. IV, Par. VI (Ga. Code Ann. 2-1606), dealing with the eligibility of persons holding a State office to serve in the General Assembly.
(7) Ga. Laws 1890-1, p. 102 (Ga. Code Ann. 89-103), dealing with a person holding a plurality of county offices.
(8) G~. Laws 1918, p. 265, 266 (Ga. Code Ann. 89-904), dealing with trustees of State institutions doing business with such institutions.
(9) Ga. Laws 1957, p. 97, 98 (Ga. Code Ann. 69-201), dealing with the competency of a councilman or alderman of a municipality to hold other municipal office.
(10) Ga. Laws 1953, p. 533 (Ga. Code Ann. 69-209), dealing with the competency of councilmen and aldermen of

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municipalities to hold other municipal office in certain counties.
(II) Ga. Laws 1898, p. 105, as amended (Ga. Code Ann. 23-1713 to 23-1714), dealing with county officers purchasing goods from businesses in which they have an interest.

OPINION 68-157 (Unofficial)

April 16, 1968

You ask the following questions:

(I) Under the Georgia Real Estate Transfer Act (Ga. Laws 1967, p. 788) is a Clerk of the Superior Court required to collect the tax on an ordinary lease (not one for timber) on land?

(2) If so, would there be any difference between a lease for five years and one for ninety-nine years?

(3) Would there be any tax imposed upon the recording of a "Notice of Lease" which merely recites that there is a lease in existence between certain parties, which notice sets out the date of the lease, the duration of the same, and a description of the land leased.

Section one of the above-cited Act provides that: "There is hereby imposed on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed ... exceeds one hundred dollars, a tax . . . ."
This is an excise tax on the privilege of selling realty. Berry v. Kavanaugh, 137 F. 2d 574 (6th Cir., 1943), and where the lease transfers an interest in realty, it is subject to the tax. Phillips Petroleum Co. v. Jones, 176 F. 2d 737 (lOth Cir., 1949), cert. den. 339 U.S. 904, 70S. Ct. 518, 94 L. Ed. 1333, (oil and gas lease). Where the lease is for less than five years, Ga. Code Ann. 61-

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10 I provides that it only creates a usufruct and conveys simply the right to possess and enjoy the use of the real estate, not an esta.te for years.
Accordingly, in answer to your first question, a lease may be subject to the tax imposed by the Real Estate Transfer Tax Act.
In answer to your second question, the provisions of the lease will generally determine if the lease is taxable. Accordingly, a lease for less than five years will generally not be construed to convey an interest in realty, while a lease for five years or longer will.
In answer to your third question, assuming that the purpose of re~ording the ."Notice of Lease" is to give notice of the interest o.f t.he parties to such lease within the meaning of Ga. Laws 1958, p. 413 (Ga. Code Ann. 29-427) then the lease itself, not a notice of its existence, should be recorded, since I can find no provision which would authorize the recording of a "Notice of Lease" for the purpose of giving notice of the interest of the parties to such lease. Accordingly, it is not necessary to determine whether the "Notice of Lease" is taxable under the Act.

OPINION 68-158

April 17, 1968

You request my opm10n on whether the Supervisor of Purchases may sell motor scooters and bicycles that have been abandoned on the campus of the University of Georgia and what special measures should be taken to secure a clear title for the sale of these items.

To establish that these items were in fact abandoned, we must prove a giving up, a total desertion and absolute relinquishment of the goods by the former owner.

"It may arise when the owner with the specific intent of desertion and reli~quishment casts away or leaves behind his property; or when after a casual and unintentional loss, all further purpose to seek and reclaim the lost property is given up." R. A. Brown, The Law of Personal Property, 6 (2d ed. 1955).

To assist in proving abandonment in the event a challenge is

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made, I suggest that considerable effort be expended in order to locate the true owners. Out of an abundance of caution, I further suggest that no final disposition of the property be made until at least one year after the abandonment of the property.

I have found no authority that a minor legally can abandon

property so that he divests himself of any interest in it. However,

due to the circumstances and the necessity for action which you

point out, you should probably proceed as outlined in this letter.

The abandonment can be ratified whenJhe minor reaches majority

and does nothing to reclaim the property. I anticipate this will

happen in most instances.

'

If the officials of the University finally decide that the items truly have been abandoned, and there are no other claims of ownership to these items, then the University can probably request that you handle this property as you would handle other surplus State property, since possession of abandoned property is generally conceded to be sufficient to allow the possessor to exercise the incidents of ownership over that property. Brown, supra, 8'; Holland v. Johnson, 22 Ga. App. 162 (1918).

Once you have determined that the abandoned property is surplus, obsolete or unused for State purposes, you may then proceed to dispose of it according to Iaw. In the event you decide to sell it, I suggest that you give notice to all prospective purchasers that the property being sold is abandoned property and that you are only purporting to sell such right or title as the University may have. This notice, under the terms of the Uniform Commercial Code (Ga. Code Ann. l09A-2-312(2)), negatives any warranty that the University has clear title to the property. Having done this, there would be no need to secure title to the property before selling it for the State.

Since there is no specific Georgia law on abandoned or unclaimed property of the nature described in your problem, each case should proceed on its own facts within the general outline of this opinion.

OPINION 6~159 (Unofficial)

April 17, 1968

Senate Bill 205 generally prohibits the intentional inhaling or

192
smelling of fumes from model glue for the purpose of causing intoxication. Section 4 of the Act prohibits the selling of "model glue" as defined in the Act to any person under eighteen (18) years of age unless written permission is given by the person's parent or guardian. You asked if the term "model glue" as defined in Section 2 of that Act would include gasoline.
The Act defined "model glue" as any glue, cement, solvent or chemical substance containing one or more of the following chemicals and the Act then lists thirty-six (36) common chemical substances.
The cardinal rule of construction is to determine the legislative intent and the title to the Act may be examined to establish that intent. Thompson v. Eastern Airlines, 200 Ga. 216 (1946). The caption to this Act clearly shows that the intent of the General Assembly was to prohibit the inhaling of model glue and other similar substances for the purpose of causing intoxication. That was the evil against which the Act was directed.
It is fundamental that every Act is to be ~iven a reasonable construction. State of Georgia v. Camp, 189 Ga: 209 (1939).
The definition of "model glue" in Section 2 of the Act initially defines it as glue or cement and these words are followed by a reference to solvents and the thirty-six (36) chemical substances. Under the rule of "ejusdem generis" the meaning of general words (in this Act the words solvent or chemical substances) following specific words or subjects (in this Act the words glue and cement) will ordinarily be presumed to be limited to the enumerated specific subjects and to include only things of the same nature. Jenkins L Jones. 209 Ga. 758 (1953).
Most common household products contain one or more of these chemicals, everything from toothpaste to shoe polish and from gasoline to soft drinks. Any construction which would define "model glue" to include any substance which contains any of the enumerated chemicals would probably render the Act so vague and indefinite that it would be unconstitutional and such a construction, of course, is to be avoided.
Applying these rules of construction to the definition of "model glue" contained in Section 2 of Senate Bill 205, I conclude that the term is limited to glues and cements which contain the enumerated solvents and chemical substances.

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OPINION 68-160

April 18, 1968

This is in response to your request for an opinion as to whether the Georgia Forest Research Council may enter into a cooperative agreement for the exchange of technical publications with the Scientific and Technical Information Center at the University of Havana.
Ga. Code Ann. 43-809(b) provides the board of commissioners of the Council with power:
"To promote and assist in the publicizing of the result of any research connected with any phase of forestry. The board shall cooperate with, and are hereby specifically authorized to counsel and advise with, any private industry, agency or agencies of the Federal government, this State, other States and local governments having duties, powers or objectives similar or related to those of the council."
Under the maxim, "Expressio unius est exclusio alterius," the power granted by the General Assembly to "cooperate with" those classes listed above excludes by implication all others, such as an institution of a foreign government. See City of Macon v. Walker, 204 Ga. 810 ( 1948).
It is, therefore, my official opinion that no such cooperative agreement may be entered with the University of Havana.

OPINION 68-161

April 19, 1968

You note the receipt of a check in the amount of $643.89, forwarded as the balance of an estate of a decedent having no heirs at law. The check was received from an attorney (whom I presume is acting on behalf of the administratrix of the estate) and made payable to the State Board of Education. You point out that Ga. Code Ann. 85-1104 provides for the proceeds of escheated property to be paid to the treasurer of the county education fund and ask whether the State Board of Education is the legal recipient of the check in question.
Based upon the facts as outlined in your letter, it would be my opinion that the sum in question should go to the county school

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fund rather than to the State Board of Education. While Ga. Code Ann. 85-1101 states:
"Escheat results upon failure of heirs, in which case the estate of an intestate reverts to the State . . . , "
Ga. Code Ann. 85-1104 declares: ''The proceeds of escheated property shall be paid, in each county to the treasurer of the educational fund of each county, to become a part of such fund.''
In construing these statutes together the Supreme Court of Georgia in Oslin v. State of Georgia, 161 Ga. 967 (1926) said that under the law of escheat in Georgia the property becomes property of Georgia:
" ... and the proceeds thereof should be paid to the treasurer of the educational funds of Troup County, Georgia, to be used for educational purposes in said county."
It should be noted that Ga. Code Ann. Ch. 85-11 also spells out the procedure (including publication requirements) to be followed in escheat situations.

OPINION 68-162 (Unofficial)

April 19, 1968

This is in reply to your letter wherein you ask that I clarify my letter of April11, 1968, to you (Opinion 68-146).

In short, any property owned by a delinquent taxpayer is subject to levy and execution for any delinquent taxes, and this is so whether the property is realty upon which the taxpayer has obtained a homestead exemption under Ga. Code Ann. 92-219 or otherwise. The reference to Ga. Code Ann. Ch. 51-1 was merely to.indicate that Georgia law does make some provision to set aside certain property from levy and execution. However, this immunity does.not apply when the levy is for delinquent taxes.

OPINION 68-163 (Unofficial)

April 19, 1968

This responds to your letter seeking to obtain copies of the

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medical records at Central State Hospital (formerly Milledgeville State Hospital) pertaining to Mr. Wallace B. Bond.
Ga. Code Ann. 88-518 (Ga. Laws 1964, pp. 499, 501) provides the following with reference to the disclosure of medical records in the possession of a psychiatric hospital:
"Records, documents, and information in the possession of a psychiatric hospital concerning any individual prior to the time he is admitted to such hospital, whether voluntarily or by court order, and concerning any patient during the period of his care and treatment, and which are not made a part of any court record, shall not be disclosed except to a court with contempt powers on its order or in response to its subpoena duces tecum, to an officer, physician, or employee of the hospital requiring the same for the performance of his duties or a physician or licensed registered nurse in the employ of the department or a county department of health who requires such information in follow-up work and aftercare for the benefit of the patient and the patient's family, 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."
As you readily will see, these records may be disclosed (I) to a court with contempt powers, either (a) on its order, or (b) in response to its subpoena duces tecum, or (2) upon a written request therefor, made to the superintendent of the hospital, where the superintendent finds adequate reason for disclosure.
It is my understanding that the officials at Central State Hospital prefer to be directed by court order to disclose these medical records. For your convenience, I am enclosing copies of our entire file on one of these motions to produce. This should furnish you a complete picture of how we have handled such matters in the past. I suggest that you follow that procedure.

OPINION 68--164 (Unofficial)

April 19, 1968

This memorandum is in response to your oral request for unofficial advice as to how the distance between liquor stores and

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churches are to be measured under Ga. Code Ann. 58-1029, which provides:
"No business licensed under this Chapter shall be operated within 100 yards of any church . . ."
The best statement of the law that I have been able to find on this subject is found in the case of Langella v. City of Bayonne, 46 A.2d 789, where the Court stated the rule as follows:
"In the cases arising under the control of location of liquor establishments the prevailing rule appears to be that, unless otherwise specifically provided (as it is in many such ordinances), the prescribed distance must be measured in a straight line, rather than in some other manner, such as by the usually traveled route or the street lines. Commonwealth v. Jones, 142 Mass. 573, 8 N.E. 602 (cited in the Warren St. Chapel case, supra); Board of Trustees of Leland Stanford Junior University v. State Board of Equalization, 1 Cal.2d 784, 37 P.2d 84, 96 A.L.R. 775; Butler v. State, 89 Ga. 821, 15 S.E. 763. We think the normal and ordinary meaning of the words used in this ordinance, that the business is prohibited where a church is located within 200 feet of the boundary line of the proposed site, is that the prohibited area is measured 200 feet from such boundary line that is nearest to the church in a straight line regardless of the course followed." (Emphasis added.)
The Georgia case referred to is an early case under previous law where the prohibitions contained language to the effect that no liquor could be sold "within a radius of three miles of any church
In a case involving zoning restrictions and an interpretation of an ordinance which contained language as "within 300 feet" the court held that the measurement was to be a straight line from one point to the other and not be a line running along nearest sidewalk route. Bine v. Board of Adjustment of Village of Ridgewood, eta/., 56 A.2d 122.
This method of measurement is apparently the method that has been used in the Department for many years. See Ops. Att'y Gen. 1952-53, p.214, 215.

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OPINION 68--165

April 22, 1968

This is in reply to your request for my official opinion on the following two questions:
(1) Where a sentence is imposed by the court and is originally probated, does the court retain jurisdiction over the entire term of such probated sentence and does the court have the authority to amend a probated sentence at any time after it has been imposed and before it has run its full length of time? As a subsidiary question to the above, does the court have authority to rescind, amend or modify a probated sentence after the court has revoked said probated sentence at a subsequent term of court other than that at which time the probated sentence was revoked?
(2) Does the court have authority to amend a sentence after the term of court has expired at which time the sentence was imposed by amending such sentence nunc pro tunc to correct an error in such sentence or to make such sentence speak the true intent of the court?
It is my understanding that the factual situation upon which these questions are based is as follows: A prisoner "A" who is presently under the custody of the State Board of Corrections entered a plea of guilty in the Superior Court of "X" County to a burglary charge on May 4, 1967, and received a sentence of five years. At the time the five years sentence was imposed, the sentence was probated upon payment of a $500 fine and upon the condition that the defendant did not violate the laws of Georgia and until further order of the court.
On September 28, 1967, the court of "X" County, for sufficient reason shown to the court, revoked the original sentence entered by the court on May 4, 1967, and used the following language in the revocation order:
"Now, therefore, it is further ordered and adjudged that said probation be and the same is hereby revoked, and that said ["A" Name Omitted] be committed to the ["X" County Name Omitted] County Jail, there to await his delivery to the proper authorities to serve two (2) years of said sentence. Upon service of said two (2) years, balance of said sentence shall be suspended."

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On October 20, 1967, "A" entered a plea of guilty to a burglary charge in the Superior Court of "Y" County and received a two year sentence. This sentence contained the following language: "Sa1d sentence to run concurrent with sentence now being served from ["X" Name of County Omitted] County, Georgia."
Under the date of February 22, 1968, the Superior Court of "X" County again modified the sentence which was originally imposed in that county on May 4, 1967, and the subsequent revocation order of that court on September 28, 1967, by entering the following order:
"Now, therefore, it is further ordered and adjudged that said probation be and the same is hereby revoked and service of time is hereby suspended.
"This order amends nunc pro tunc original Order Revoking Probation dated the 28th day of September, 1967.
"This the 22nd day of February, 1968."
Finally, on the 26th day of March, 1968, the Superior Court for "Y" County entered an order which reads as follows:
"The order of this Court dated February 26, 1967, is hereby RESCINDED, VACATED and SET ASIDE.
"The above named Defendant was sentenced on the 20th day of October, 1967, to serve two (2) years in the penitentiary of this State, said sentence to run concurrent with the sentence then being served from ["X" Name of County Omitted] County, Georgia.
"It was the intent of the Court in passing the above sentence that the said sentence should expire when the sentence. in ["X" Name of County Omitted] County expired, so that Defendant should be released from confinement on the sentence of this Court at the same time Defendant is released from confinement on the sentence from ["X" Name of County Omitted] County.
"It is now so ORDERED nunc pro tunc."
It is submitted that one further question should be added to the above set forth questions which you have proposed. It is believed that this question raises a legal issue which goes to the very crux

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of this dilemma. That question is whether or not a trial court after it has revoked a probational sentence by sentencing a defendant to a determinate period of time and suspending the remainder of his original sentence can subsequent to the entry of this revocation order revoke, change and modify this revocation order by a second revocation order.
Based on the citations of authority and reasoning hereinafter set forth, it is my official opinion that:
(I) When a prisoner is placed on probation, the original sentence is subject to modification by the rendering court at any time during the period of probation.
(2) The judge imposing said sentence is granted the power and authority to revoke said suspension or probation when the defendant has violated any of the rules or regulations prescribed by the court.
(3) In the imposition of a sentence if the trial court suspends the service of part of said sentence, the provision for said suspension shall not have the effect of placing the defendant on probation, thus, once a probated sentence is revoked and said probationer has been sentenced to a definite period of years imprisonment and the remainder of his sentence has been suspended, this sentence does not have the effect of placing the defendant on probation and, therefore, such sentence cannot be revoked.
(4) Due to the nature of the previous legal conclusions, it is submitted that an answer to the second major question proposed by you on whether or not a court has the authority to amend a sentence after the term of court has expired at which time the sentence was imposed by amending such sentence nunc pro tunc to correct an error in such sentence or make such sentence speak the true intent of the court is unnecessary and moot.
It is well established that the court is without the power to modify or amend a sentence after the term of rendition has expired. Long v. Stanley, 200 Ga. 239, 241; Shaw v. Benton, 148 Ga. 589(1); Auldridge v. Womble, 157 Ga. 64; Stockton v. State, 70 Ga. App. 17. Of course, during the term a sentence is subject to modification by either diminishing or increasing the punishment, Gobles v. Hayes, 194 Ga. 297; Jobe v. State, 28 Ga.

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235. Also, a void sentence is subject to amendment any time, or more specifically, the court may at any time impose a new, valid sentence, where the prior sentence was void. Heard v. Gill, 204 Ga. 261; Morris v. Clark, 156 Ga. 489(2); McLendon v. State, 207 Ga. 328. Similarly, where for some reason the prisoner is not sentenced at the term of court at which he was convicted, he may be brought back before the court at a later term and have sentence imposed upon him. Penny v. Horton, 197 Ga. 824(2). Under the provisions of Ga. Code Ann. 27-2502 the trial judge imposing a sentence rendered by the jury is granted the power and authority to suspend or probate said sentence under such rules and regulations as he thinks proper. The trial judge is also empowered with the right and authority to revoke said suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court. Also, Ga. Code Ann. 272709 provides
"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 prescribed for the probated sentence to run."
Based on the above cited citations of authority the trial court in "X" County retained jurisdiction over "A" when it entered its order on May 4, I967, probating the sentence of five years. Thus, the court had the power and authority on the 28th of September, I967, to revoke this probationary sentence. But, in so doing, the court entered an order which established a sentence of a definite period of time, i.e., two years, and suspended the remainder of the original five year sentence.
Georgia Code Ann. 27-2714 provides:
"In all criminal cases in which the defendant shall be found guilty, or in which a plea of guilty or pleas of nolo contendere shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended. such provision shall not

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have the effect of placing such defendant on probation as provided in this law." (Emphasis added.)
The editorial note following this Code Section states: "Acts 1965, p. 413, inserted the provision that the
suspension of a sentence does not place the offender on probation. This was a reversal of a previous policy. . . ."
Therefore, when the Superior Court of "X" County revoked the original probationary sentence and sentenced "A" to a definite period of years imprisonment and suspended the remainder of the sentence, it in effect eliminated all probationary elements of the original sentence. Furthermore, it should be noted that the order of "X" County entered February 22, 1968, attempting to revoke the order which had previously revoked the probationary sentence entered on the 25th day of September, 1967, was in a different term of court. Therefore, since 27-2714 provides that the imposition of a suspended sentence shall not have the effect of placing the defendant on probation and since the appellate courts of Georgia have held that a trial court is without power to modify or amend a sentence after the term of rendition has expired, therefore, it is to be concluded that this attempted revocation by an order of February 22, 1968, was null and void in that the court was without power and authority to change a sentence rendered in a former term of court. Furthermore, the Court of Appeals of Georgia in Phillips v. State, 95 Ga. App. 277 (1957) held that the Probation Act of 1956 (Ga. Laws 1956, p. 27, as amended) does not authorize the court at a subsequent term to add to the sentence a provision for probation where he made no provision relating theret,o in the first instance.
This opinion can be distinguished from the former opinion of the Attorney General, Ops. Att'y Gen. 1958-59, p. 255, in which this Department stated that a suspended sentence has the effect of placing a prisoner on probation. It should be noted that this opinion was rendered by this office prior to the amendment in 1965 of Ga. Code Ann. 27-2714, supra. Also, in your request you mentioned an unpublished opinion of this Department dated July 8, 1960. In that opinion, the question was whether or not a court has the authority to remold a sentence which was originally probated at the time it was imposed and later revoked and the order to remold or amend the sentence is done at a subsequent

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term of court at which time the probated sentence was revoked. That question does not go to the extremes that are presented by the situation in this question under consideration. The conclusions in this opinion of July 8, 1960, are in accord with the results reached in this opinion since a court would have the authority to impose a probationary sentence and at a subsequent term of court revoke the original probationary sentence and remold or amend the sentence at that subsequent term. This is in accord with the discussion of the present law as hereinbefore set forth.
Finally, due to the fact that the sentence out of "X" County Superior Court is the controlling sentence and the sentence out of "Y" County is to run concurrent with the sentence being served in "X" County, then an interpretation of the nunc pro tunc order entered by "Y" County Superior Court on March 26, 1968, is unnecessary. The question presented in your request is moot since the original order of October 20, 1967, out of "Y" Superior Court provided that this sentence was to run concurrent with the sentence then being served in "X" County.*
*See supplemental opinion 68-200.

OPINION 68-166

April 22, 1968

This is in reply to your recent request for my opmwn on whether or not a sentence which is rendered in one term of court but is unsigned can be amended in a later term of court.

It is my understanding that the factual situation out of which this question arose is as follows: A prisoner was sentenced in the civil and criminal court of a county in the State of Georgia during the November term of that court. Pursuant to the defendant's entry of a plea of guilty to two separate accusations, he was sentenced in each case to a period of twelve months imprisonment. Although each sentence was written out, yet, the trial judge did not sign either of these two sentences.

During the January term of the civil and criminal court of the county, the court amended the sentences which were originally imposed. These sentences read respectively:

"The court having previously entered sentence and said

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defendant having been in custody since November, 1967, said sentence is modified and remitted to time served upon payment of costs of $44.00 to the probation officer of this court. So ordered this 20th day of January, 1968."
"The court having previously, under date of November 27, 1967, imposed sentence of twelve months and said sentence not having been signed and for cause shown, said sentence is modified and remitted to time served to date upon the payment of a fine of $103.00 to the probation officer of this court. So ordered this 20th day of January, 1968."
Each of these amended sentences were signed by the judge of the county civil and criminal court.
The legal issue presented by this situation is whether or not an unsigned sentence is a binding judgment of the court. If an unsigned sentence is considered a pronouncement of judgment, then this situation would come within the scope of the legal principle of Georgia that a court has the power to amend and modify its sentences only at the term during which they are imposed. [See for this proposition Gables v. Hayes. 194 Ga. 297, 298,21 S.E.2d 624 (1942).]
It is an established legal principle in Georgia that a sentence is not complete until the presiding judge has reduced it to writing, signed it and delivered it to the clerk for record. Wright v. State, 75 Ga. App. 764, 44 S.E.2d 569 (1947); Clark v. State, 72 Ga. App. 603, 34 S.E.2d 608 (1945). It is now settled that the pronouncement of judgment consists of the actual signing of the written sentence by the judge and its delivery to the clerk for recording; and that any oral pronouncement by the judge as to what the sentence is going to be forms no part of the "pronouncement of judgment." See Clark v. State, supra; Wright v. State, supra; Long v. State, 200 Ga. 239, 36 S.E. 785 (1946); Morgan v. Moint, 195 Ga. 281,24 S.E.2d 17 (1943). Finally, this situation comes within the principle set forth by our Supreme Court that where for some reason the prisoner is not sentenced at the term of court at which he was convicted, he may be brought back before the court at a later term and have sentence imposed upon him. Davis v. State, 192 Ga. 648; Penny v. Horton, 197 Ga. 824(2).
Therefore, based upon the above cited legal authority, it is to

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be concluded that the sentences which were entered by the civil and criminal court in the November term of said court were unenforceable in that the trial judge failed to sign said sentences and, therefore, these sentences could not be considered as a pronouncement of judgment by the court. Thus, when the court entered its sentence during the January term which differed from the unsigned sentences of the November term, it in actuality was entering judgments for the first time since the former unsigned sentences could not be considered as pronouncements of judgment. Therefore, it is my official opinion that the sentences and judgments entered by the court during the January term are to be considered as the only pronouncements of judgment by this court pursuant to the entry of pleas of guilty by the defendant. Hence, the actions of this court would not violate the rule as stated, supra, that a trial court does not have power to amend or modify sentences at a term of court other than the term during which the sentences are imposed.

OPINION 68-167

April 23, 1968

This is in response to your request for an official opinion as to whether or not buildings owned by the Georgia Building Authority (formerly the State Office Building Authority) are subject to the provisions of the Vending Stand Act. Ga. Laws 1956, p. 52, Ga. Code Ann. 32-2316 through 32-2318.

OPINION

The Vending Stand Act is not applicable to buildings and other real property the title to which is vested in the Georgia Building Authority.

DISCUSSION

The name of the State Office Building Authority has been changed to the Georgia Building Authority, but

" . . . such change in the name of the Authority shall in no way affect the identity of the Authority or the rights, powers, privileges or liabilities of the Authority...." Ga. Code Ann. 91-50.1a(a).

The Governor is authorized to convey to the Authority real

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property the title to which is vested in the State. Ga. Code Ann. 91-504a(3). Among the powers of the Authority, set forth in Ga. Code Ann. 91-504a, are the following:
I. The power "to acquire by purchase, lease or otherwise, and to hold, lease and dispose of real ... property of every kind and character for its corporate purposes."
2. The power "to acquire in its own name by purchase, on such terms and conditions and in such manner as it may deem proper, or by condemnation in accordance with the provisions of any and all existing laws applicable to the condemnation of property for public use, real property or rights of easements therein . . . for its corporate purposes.
"
3. The power "to construct, erect, acquire, own, repair, remodel, maintain, add to, extend, improve, equip, operate, and manage projects . . . to be located on property owned by or leased by the Authority. . . ."
The Georgia Building Authority is:
" ... a body corporate and politic ... which shall be deemed to be an instrumentality of the State of Georgia and a public corporation...."Ga. Code Ann. 91-502a.
A public corporation such as the Georgia Building Authority is not the State, nor a part of the State, nor an agency or branch of the State, but is a mere creature or instrumentality of the State holding title to real property for the benefit of the State and the public. Scarlett v. Georgia Ports Authority, 223 Ga. 417 (1967), International Longshoremen's Association v. Georgia Ports Authority, 217 Ga. 712, 715 (1962), Smith v. State of Georgia, 217 Ga. 94, 99 (1961), Sigman v. Brunswick Port Authority, 214 Ga. 332, 335 (1958), State Ports Authority v. Arnall, 201 Ga. 713, 722 (1947).
The Vending Stand Act relates to "vending stands on any State property," Ga. Code Ann. 32-2316, and is concerned with whether the establishment of such stands would cause "undue inconvenience to the operation being carried on in such State building or property." Ga. Code Ann. 32-2317. No express reference is made in the Act to buildings or other real property the title to which is vested in an authority. The legal question

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therefore becomes one of whether or not real property held by the Georgia Building Authority in behalf of the State should be included by implication within the terms "State property" and "State building" as used in the Act.
In light of the cases cited above, which indicate that real estate held in the name of an authority is property of the authority and not of the State, although the authority holds title in behalf of the State, it would appear that the Vending Stand Act is not ambiguous and must be applied exactly as written. Kendrick v. Kendrick, 218 Ga. 284, 285 (1962). Whatever properties may be included within the Act, real property held by the Georgia Building Authority in behalf of the State is not within the statutory ambit.
We would like to point out that the opinion herein set forth takes into consideration, and is in no way inconsistent with, an unofficial opinion to the Assistant State School Superintendent, dated January 13, 1967, which was not addressed to the specific question with which this opinion is concerned.

OPINION 68-168 (Unofficial)

April23, 1968

My understanding of your question is the following: May you, while in the employ of the State as a Professor at Georgia State, occupy a seat on the School Board of Rockdale County?

It is unlawful for an employee of the Executive branch of State government to accept or hold office or employment in the legislative or judicial branches of State government. Ga. Code Ann. 26-5009(c). Further, a person may not hold more than one county office at the same time. Ga. Code Ann. 89-103.

In order to answer your question, it is not necessary to consider the matter of whether a position on a county board of education is a county office or whether it is a part of the Executive branch of State government. Obviously, more than one county office is not involved in the question we are considering, and Ga. Code Ann. 89-103 above referred to is not offended. Further, even if the position of county board of education member could be considered part of the Executive branch of State government, only

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the Executive branch of government would be involved and Ga. Code Ann. 26-5009(c) referred to above would not be offended.
Therefore, neither of said statutes would appear to prohibit you from serving on the Rockdale County Board of Education while in the employ of the State as a Professor at Georgia State. Let me point out, however, that a different question would be presented if you were a teacher in the school system over which the Board of Education on which you occupied a position had immediate jurisdiction. Although that proposition is not before us in this instance, it is alluded to in order that this opinion will not be construed to constitute a judgment on any question more general in nature than the one specified.

OPINION 68-169 (Unofficial)

April 23, 1968

You ask for an opmwn relative to the legal considerations involved for an employee of a county school board who offered for a seat in the General Assembly.

First, I shall state your question exactly as you posed it: "What are the legal considerations for a person employed by a county school board, if such a person should become a candidate for the General Assembly? I make reference to such persons as teachers, principals, and administrative personnel."

"No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State... shall have a seat in either house [of the General Assembly]...." Georgia Constitution Art. Ill, Sec. IV, Par. VI (Ga. Code Ann. 2-1606). Further, it is unlawful for members of the General Assembly to accept or hold office or employment in the executive or judicial branches of government. Ga. Code Ann. 26-5009.

Employees of a county school board (such as teachers, principals, and administrative personnel) would not appear to "hold ... (an] appointment, or office" as contemplated by Georgia Constitution, Art. III, Sec. IV, Par. VI (Ga. Code Ann. 2-1606), nor would they appear to hold office or employment in the executive branch of the government as contemplated by Ga. Code Ann. 26-5009.

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Therefore, being in the employ of a county school board would not make a person ineligible to occupy a seat in the General Assembly.
Please allow me to point out that the foregoing opinion is predicated on the assumption that a county school system does not constitute a part of the executive branch of State government. It could be argued that it does bear certain indicia of same, but in the absence of any judicial pronouncement on the question, it would seem that the more reasonable assumption is the one on which I have based the conclusion reached.

OPINION 68-170 (Unofficial)

April 23, 1968

I am pleased to answer the two questions that you raised in your recent letter.
The first question you asked is whether your son qualifies under the "Extension of Licenses of Members of Armed Forces" section of the Ga. Code Ann. You state that your son's license would have expired on March 31, 1962. Ga. Code Ann. 92A-435 states as follows:
'The expiration date of all current drivers' licenses now held by or hereafter issued to citizens of this State now serving in the armed forces of the United States and the expiration date of all drivers' licenses held by or hereafter issued to citizens of this State current at the time such citizen enlists or is inducted into the service of the armed forces of the United States are hereby extended for the duration of any such service: Provided, that such extended expiration date of any such driver's license shall terminate 90 days after the discharge from the armed forces of the United States of any holder thereof. (Acts 1945, pp. 117, 120; 1966, pp. 546, 549.)" (Emphasis added.)
It is my opinion that Ga. Code Ann. 92A-435 only applies to drivers' licenses which were active as of March 15, 1966. Since your son's license expired March 31, 1962, he would not be entitled to an extension of his driver's license under this law. Georgia had a previous Code section that was very similar to the

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one quoted abbve which was passed in 1945, however, this act applied only to those servicemen who participated in World War II.
The second question you asked is whether your son would be entitled to retain an honorary veteran's license if he reenlisted for active duty. In answering this question I shall assume that your son is fully qualified for the honorary license. Ga. Code Ann. 92A-436 deals with the honorary licenses issued to veterans. The latter part of that Code section states as follows:
" ... (honorary driver's license) shall be a valid operator's or driver's license as required by this chapter until the same shall be suspended or revoked in accordance with the law."
From the language of this section and a survey of the other Code sections that are applicable to this type of license, it is my opinion that once a veteran's license is properly issued the only reason that it would be revoked or canceled would be upon grounds of misconduct of the driver. Therefore, if your son qualified for an honorary driver's license under Ga. Code Ann. 92A-436 he would be entitled to retain this license even though he were to return to active military duty.

OPINION 68-171 (Unofficial)

April 23, 1968

This is in reply to your recent letter in which you requested information on two different subjects. The first question was concerning the duties of the Attorney General in handling appeals from convictions of capital felonies. Your second question concerned the recent unofficial opinion of this office regarding the fees paid to justices of the peace for issuing criminal warrants. Your question was whether or not the justice of the peace would be entitled to 50 cents as provided in the Uniform Traffic Act or whether or not he would be entitled to the J.P. cost.

It is this office's understanding that the factual situation on which your first question is based is as follows: One "G. D." [name withheld pursuant to Law Department policy) has been convicted by the Floyd County Superior Court of murder and sentenced to die in the electric chair. Subsequent to his conviction

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he has filed a motion for new trial. In a telephone conversation with you subsequent to the receipt of this letter, you informed this office that due to certain existing circumstances and conflicts involving the courts a hearing on the motion for new trial has been continued until some future date.
The Constitution of Georgia, Art. VI, Sec. X, Par. I I (Ga. Code Ann. 2-4502) sets forth the duties of the Attorney General and states in part: "It shall be the duty of the Attorney General . . . to represent the State in the Supreme Court in all capita! felonies . . . ."
Specifically, in answer to your question based on the above quoted provisions of the Constitution the Attorney General becomes an active participant in a capital felony prosecution only after an appeal from a conviction for a capital felony has. been perfected in the Supreme Court of Georgia. After the appeal has been properly docketed and the Attorney General has been served with the appellant's enumerations of error and brief, in support of these enumerations the Attorney General will file a brief in answer to the appellant's allegations. Therefore, since the motion for a new trial is considered as a pre-appellate procedure then until an appeal is perfected the Attorney General is not authorized to actively participate in these proceedings.
In regard to your second question, it is believed there is some confusion by your office as to the contents of the unofficial opinion issued by this office concerning fees paid to the justices of the peace. This conclusion is based on your statement that you understood that our Department had issued a ruling recently in connection with the J.P. cost on a warrant charging a person with driving under the influence. You further state that a question has come up as to whether or not the justice of the peace will be entitled to 50 cents as specified in the Uniform Traffic Act or the regular J.P. cost.
We are enclosing a copy of the unofficial opinion issued by this office on March 13, 1968 [Opinion 68-108], to the Judge of the City Court of Stephens County, Toccoa, Georgia, in which two different questions were presented to this office. He had requested an opinion on whether or not under the new provisions for the payment of fees to justices of the peace in Ga. Laws 1967, p. 469, a justice of the peace is entitled to $4.00 for a warrant issued

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against an offender for the offense of driving under the influence or whether or not he is entitled only to 50 cents for the issuance of such warrant. Also, as a subsidiary question, he had requested an opinion on whether or not driving under the influence is a traffic offense. In answering these two questions it was this office's unofficial opinion that since the offense of driving under the influence is established under the Uniform Act Regulating Traffic on Highways and, furthermore, since the 1967 Act providing for fees of the justices of the peace expressly provides that a justice of the peace can charge and collect only 50 cents for the issuance of a criminal warrant for the violation of the provisions of the Uniform Act Regulating Traffic on Highways, then the justice of the peace is not entitled to and cannot collect $4.00 for the issuance of a warrant for the offense of driving under the influence.
Specifically, your question seems to be predicated on the premise that there are two different provisions for payment of justices of the peace fees, e.g., provisions for fees in the Uniform Act Regulating Traffic on Highways and provisions under the laws establishing justices of the peace. This is not the case, however, since Ga. Laws 1967, pp. 469, 471, repealed all provisions in conflict with the present provisions and set forth the fees to be paid to the justices of the peace for the issuance of criminal warrants:
"The following shall be the fees for justices of the peace of this State and it shall be lawful for said justices to charge the same: ...
Each criminal warrant issued except warrants issued for offenses under the Uniform Act Regulating Traffic on Highways . . . . $4.00
Each criminal warrant issued under the Uniform Act Regulating Traffic on Highways . . . . $ .50 ...."
Therefore, if the offense for which the warrant is to be issued is based on the provisions of the Uniform Act Regulating Traffic on Highways, then the justice of the peace can collect as his fee only 50 cents.

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OPINION 68-172 (Unofficial)

April 24, 1968

This will acknowledge your recent letters wherein you inquired as to whether or not county funds and equipment could be used in disposing of diseased livestock.

As I understand your request, you would like to have information concerning the use of county funds and equipment to dispose of privately owned livestock which has been destroyed pursuant to State and Federal regulations relative to the destruction of livestock which is suffering from communicable disease, e.g., hog cholera, hoof and mouth disease, etc.

As you stated in your explanatory letter, the county does not plan to kill the animals but merely wishes to use county funds from the general treasury to bury or otherwise dispose of the diseased livestock. Additionally, you stated that barring an extreme epidemic, county equipment and personnel would not be used, but that the county will merely bear, up to a certain sum, the expenses of burying or disposing of the diseased animals. Finally, you stated that the purpose of disposing of these diseased animals is, " . . . to prevent the spread of disease."

Your attention is called to the Constitution of Georgia, Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701), wherein it is provided that:

The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except: . . . 7. For public health purposes in said county, ....

Pursuant to this authority, the General Assembly of Georgia provided in Ga. Laws 1946, p. 87 that:

County taxes may be levied and collected for the following purposes: . . . 7. For public health purposes in said county,

Thus, the counties of Georgia are authorized to levy and collect county taxes for purposes concerning public health.
Since the power to levy and collect taxes for certain purposes carries with it the power to expend the sums so collected, the

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counties are authorized to expend county funds which are derived from the levying and collecting of county taxes " . . . for public health purposes . . . ."
A somewhat similar situation arose in A vera v. Clyatt, !52 Ga. 280 (1921) wherein it was contended that the .members of the County Board of Roads and Revenues of Berrien County were about to make expenditures which were without authority in law, were unconstitutional and void to dip cattle for tick eradication pursuant to an act of the General Assembly (Ga. Laws 1909, p. 131, as amended by Ga. Laws 1918, p. 256). It was alleged that the act of the General Assembly was unconstitutional since it allowed the expenditure of public funds, raised by taxation, for a purpose not within a purview of Art. VII, Sec. VI, Par. II of the Georgia Constitution of 1877 which enumerated the purposes for which a county was authorized to tax. This constitutional provision stated that:
The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except . . . to provide for necessary sanitation . . . .
In A vera. supra, the Supreme Court of Georgia held that the lower court had correctly refused an injunction which would have prohibited the expenditures of funds for the tick eradication. The Court stated at p. 282, citing from Townsend v. Smith, \44 Ga. 792 (1916), as follows:
'The provision of the constitution of Georgia inhibiting the delegation by the legislature to any county of the right to levy a tax for any purpose except for those specified in art. 7, sec. 6, par. 2, among which purposes is that of providing for sanitation, is not offended by an act authorizing the appropriation of funds for carrying on and aiding in the work of the eradication of cattle-ticks and the suppression of contagious and infectious diseases of live stock. The expression, "provide for necessary sanitation," is sufficiently comprehensive to authorize the raising and the expenditure of money for the purposes within the purview of the statute referred to.' Accord: McMillan v. Tucker, 154 Ga. 154, 171 ( 1922).
Therefore, it is my unofficial opinion that if the Supreme Court of Georgia concluded in 1921 and 1922 that the expenditure of

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county funds for the purpose of tick eradication, so as to suppress contagious and infectious diseases of livestock, came within the expression of, "provide for necessary sanitation," it is reasonable to assume that the disposal and burial of diseased livestock, so as to prevent the spread of disease, would be within the present provision of"... public health purposes ..

OPINION 68-173 (Unofficial)

April25, 1968

This is in response to your request for an opinion as to whether or not the assigning of fourteen- and fifteen-year-old children who are residents of Georgia to Job Corps Centers in other jurisdictions would offend the compulsory school attendance laws of the State of Georgia.

OPINION
The assigning of fourteen- and fifteen-year-old children who are residents of Georgia to Job Corps Centers in other jurisdictions would not offend the compulsory school attendance laws of the State of Georgia.

DISCUSSION
The laws of Georgia applicable to compulsory school attendance are to be found in Ga. Code Ann. . 32-2101 et seq., 32-807, and 2-4102. The parental obligation is to send all children between their seventh and sixteenth birthdays to a school, either public or private. Ga. Code Ann. 32-2104. No provision contained in these laws seems to indicate that a Job Corps Center is not such a "school" as would satisfy the requirement of school attendance.

OPINION 68-174 (Unofficial)

April25, 1968

You have requested my opmwn concerning House Bill No. 1548, Act No. 1110, passed by the 1968 General Assembly and signed by the Governor on April 9, 1968, which amends Ga. Laws 1900, p. 93, so as to change the compensation of the Judge of the City Court of Americus and to change the name of the "City

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Court of Americus" to the "Civil and Criminal Court of Sumter County". The questions you have posed are as follows:
I. Whether the Act went into effect on April 9, 1968, when the Governor signed it.
2. Whether the Act created or abolished any court and whether there would be a necessity of transferring the cases from the City Court of Americus to its new title.
In response to your first question, it is the general rule in Georgia that once an Act has been passed by the Legislature and signed by the Governor, in the absence of an enacting date, the Act goes into effect the moment the Governor signs it. See Floyd County v. Salmon, 151 Ga. 313, 106 S.E. 280, conformed to 26 Ga. App. 582, 107 S.E. 91 (1921); Wright v. Overstreet, 122 Ga. 633, 50 S.E. 487 (1905); Smets v. Weathersbee, R.M. Charlt. 537 (1837); and Heard v. Heard, 8 Ga. 380 (1850). House Bill No. 1548 is silent as to the date which it is to go into effect. Therefore, this Act went into effect on April 9, 1968, when the Governor signed it.
In answer to your second question, since House Bill No. 1548 does not alter the makeup of the City Court of Americus, but merely changes its name to the Civil and Criminal Court of Sumter County, it does not create or abolish any court. There would be no necessity of transferring the cases from the City Court of Americus to its new title in those cases which occurred prior to April 9, 1968. However, all cases arising after April 9, 1968 should be in the name of the Civil and Criminal Court of Sumter County.

OPINION 68-175

April 30, 1968

This is in response to your request for an official opinion on the question of whether or not a Recorder's Court would have the authority to commit an individual to a county public works camp which operates under the jurisdiction of the State Board of Corrections.

OPINION

Yes; provided (I) that the city prisoners committed are not required to work on the county public works camp; (2) that they

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are otherwise separated from county prisoners convicted of State felonies and misdemeanors; and (3) that the receiving county is compensated for the board and upkeep of such city prisoners.
The Georgia Supreme Court decision in Pearson v. Wimbish, 124 Ga. 701,712, 52 S.E. 751 (1905), held that the Due Process clause of the Georgia Constitution, Art. I, Sec. I, Par. Ill (Ga. Code Ann. 2-103) forbade a City Recorder's Court to summarily commit a prisoner to be "confined at labor in the county chaingang along with violators of the State laws ...." 124 Ga. at 713. This full bench decision was based on the rationale that "When the punishment imposed is the same, or of the same nature, as that inflicted upon offenders against the laws of the State, and to be suffered in company with them, due process requires a trial to some extent analogous to the trial of persons accused of misdemeanors against the State." 124 Ga. at 712. See also, Loeb v. Jennings, 133 Ga. 796,67 S.E. 1090 (1909).
However, it seems that this prohibition would not apply where the prisoners committed by the Recorder's Court are (I) not required to work in the county public works camp, and (2) are separated from the State prisoners, or (3) where the city prisoners are committed from a city court where a jury trial and other procedural rights granted to persons accused of State crimes are provided. See, for example, the agreement between Fulton County and the City of Atlanta which provided for the county detention of persons incarcerated for traffic offenses by the traffic court of the City of Atlanta. Fulton County Code, 58-2, Ed. Note.
It seems also that the receiving county must be compensated for the maintenance and upkeep of city prisoners convicted only under municipal ordinances. The usual method of doing this is by contract between the city and counties involved. The AtlantaFulton County contract mentioned above provides for payment to the county at the rate of $2.70 per prisoner per day. See also, Ga. Laws 1960, p. 1232, authorizing the County of Glynn to contract with Brunswick for use of its jail facilities. Although there is no explicit Georgia law requiring such compensation, it is generally recognized that a taxpayer, acting in behalf of the county, can obtain an injunction in equity forbidding the county from providing gratuitous services to other counties or municipalities. See generally, Constitution of Georgia, Art. VII, Sec. I, Par. II

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( 2-5402), Annotations; Ga. Code Ann. 77-312 (Supp.), Ga. Laws 1956, pp. 161, 174; 1964, pp. 491, 492; 52 Am. Jur. Taxpayer's Actions 15; 14 Am. Jur. Counties 77; 17 A.L.R. 2d 475; and Russell v. Tate, 52 Ark. 541, 13 S.W. 130 (restraining city from building courthouse for county).
Such a contract between a city and county would be authorized by the Georgia Constitution, Art. VII, Sec. VI, Par. l(a) ( 2590 I), providing that:
" ... [A]ny city ... or county of this State may contract for any period not exceeding fifty years, with each other ... for the use . . . of any facilities or services of the . . . city [or] county . . . provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." (Emphasis added.)
Barge v. Camp, 209 Ga. 38, 46, 70 S. E. 2d 360 (1952) specifically upheld the authority of Atlanta and Fulton County to contract regarding police services under this provision.
There is no statutory provision that would prohibit the Board of Corrections from recognizing such a contract, and Ga. Laws 1963, pp. 354, 355 (Ga. Code Ann. ~ 23-290 I) makes this clear:
"The State and all departments, boards . . . and other agencies are hereby authorized and empowered . . . to furnish and make a vailable services, assistance, funds, property ... to any two or more counties, municipal corporations . . . and other political subdivisions or any combination thereof, in connection with any program of services . . . where such [counties or cities] are . . . able and willing to provide for the . . . joint administration of such program ... so as to effectuate economy or simplification in the administration or financing thereof."
After commitment the city prisoner would come under the authority of the Board of Corrections, Ga. Code Ann. 77309(d)(e); and the Board would be authorized to contract with the city and county regarding this if necessary. Ga. Code Ann. 232902.
OPINION 68-176 May I, 1968
You have requested my official opinion as to whether the State Board of Corrections may close the accounts of inmates at

218
Georgia State Prison, relative to outstanding checks on inmate deposits and inactive deposit accounts, which have been outstanding or inactive for some length of time.
Since the accounts you have reference to are the property of the inmates in question, their disposition would be governed by the general laws of property in this State. No person is permitted to convert the property of another to his O\Vn use or purpose unless he has some legal justification. After a thorough research of the laws on this subject, I have been unable to find any justification for the action you propose. Therefore, it is my official opinion that the State Board of Corrections may not legally close the accounts of inmates, even though they may have been inactive for some length of time.
In your letter you also state that the existence of these numerous accounts have led to a considerable problem in bookkeeping. This problem might be remedied somewhat if the old accounts were joined under some consolidated heading for bookkeeping purposes, keeping an accurate list of each account but carrying them forward on the books as one financial entry.

OPINION 68-177 (Unofficial)

May l, 1968

This is in reply to your recent request for an opmwn as to whether the commissioners of Baker County have the authority to consolidate the five militia districts of said county into one militia district.

Ga. Code Ann. Ch. 23-2 and Ga. Code Ann. 23-701(4) place the responsibility for changing the boundaries of, or consolidation of militia districts upon the ordinary. As interpreted by the Supreme Court of Georgia, however, the ordinary's powers as described in the Code are effective only when jurisdiction over such matters has not been granted by legislative act to the county commissioners. See Camp v. Trapp, 209 Ga. 298 (1952); Bowen v. Lewis, 201 Ga. 487 (1946); Hackey v. Leake, 91 Ga. 141 (1892).

Ga. Laws 1917, pp. 306, 309, confers upon the county commissioners of Baker County original and exclusive jurisdiction in establishing and changing militia districts. Accordingly, I

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believe that the commissioners did have the authority to consolidate the militia districts as described in your letter.

OPINION 68-178 (Unofficial)

May 2, 1968

In the interest of clarity, I shall pose in its entirety the question you have asked, same being the following:
"The City of Toccoa owns an easement along the lands of a private property owner appnuimately 600 feet from the city limit to a plant site for a sewage treatment plant, but uses this land under an easement from the property owner for the purpose of constructing and maintaining a sewage disposal plant. The Stephens County Hospital, operated by the Stephens County Hospital Authority, is located somewhat adjacent to the sewage treatment plant and the Hospital Authority would like to annex its property into the city limits. The question is whether or not the city could use this lO-foot easement or approximately 600 feet as a means of being contiguous to the Hospital Authority property."

It is unnecessary to discuss the various manners in which a municipality may annex territory contiguous thereto in order to give an opinion on the particular question you have asked. For these methods, however, reference is rqade to Ga. Laws 1965, p. 298 (Ga. Code Ann. 69-lO 15 to 69-1020) and to Ga. Laws 1966, p. 409 (Ga. Code Ann. 69-904 to 69-912). Also in this connection, see, Lee, eta!. v. City ofJessup, 222 Ga. 530 (1966).
With reference to your question of whether the Stephens County Hospital Authority property may be considered "contiguous" to the City of Toccoa for the purpose of annexation, I find no judicial interpretation or definition by a Georgia court of the word "contiguous." However, Ga. Laws 1966, p. 409 (Ga. Code Ann. 69-904 to 69~912), which is one of the statutory methods of annexation, provides the foHowing definition of the word "contiguous" at Ga. Code Ann. 69-908:
'' '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

220
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."
This legislative expression relative to the contiguity required for the annexation of territory by a municipality would make it appear that the method for annexation provided for by Ga. Laws 1966, p. 409 (Ga. Code Ann. 69-904 to 69-912), could not be used for annexation of the land referred to in your question.
Whether this statutory definition of "contiguous" would be applicable in the case of annexation under Ga. Laws 1965, p. 293 (Ga. Code Ann. 69-1015 to 69-1020), or by special act of the legislature (See, Lee, et a!. v. City of Jessup, 222 Ga. 530 (1966)), is not clear. Resolution of this question is unnecessary in this instance, however, because your inquiry deals with a tract of land which is some 600 feet from the present city limits of Toccoa. The 10-foot easement to which you refer, and which you describe as running "along the lands of a private property owner, approximately 600 feetjr-oJn the city limits to a plant site," would be no more a part of the corporate limits of Toccoa than would the plant site which is 600 feet from said limits. Consequently, even if the 10-foot strip of land over which said easement runs were "contiguous" to the Hospital Authority property, this would bear no relevance to the question of contiguity to the corporate limits of Toccoa because the land over which said easement runs is no more a part of said corporate limits than is the Hospital Authority property.
In view of the foregoing discussion, it is my opinion that the City of Toccoa could not annex into its corporate limits the Stephens County Hospital Authority property in the absence of a simultaneous annexation of the territory which apparently lies between the present city limits ofToccoa and said property.
It is worthy of note that, even if the land across which the 10foot easement you refer to runs were a part of the corporate limits

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of Toccoa or if such strip of land were annexed along with the Hospital Authority property in an attempt to attain contiguity, it is highly unlikely that same would constitute a valid annexation. Although I find no Georgia authority on the question of the annexation of a narrow strip of land to provide such contiguity, judicial decisions from other jurisdictions have indicated that same would be considered no more than a subterfuge and inadequate for the purpose of providing the type of contiguity necessary. See, Clark v. Holt, 218 Ark. 504, 237 S.W.2d 84, 83; Wild v. People, 227 Ill. 556, 81 N .E. 707, 708. Consequently, it appears that genuine contiguity for the purpose of annexation involves more than a very limited territorial connection by a strip of land which has and would never serve any purpose save that of providing mechanical territorial contiguity.

OPINION 68-179 (Unofficial)

May 2, 1968

I have at your request reviewed the opmwn of June 6, 1963,

concerning the taxation of wine, (Op. Atty Gen., 1963-65, p. 138)

with respect to both the question of statutory construction and

with respect to the question of due process and equal protection

you mentioned at our last conference.



The Revenue Department has advised me that the interpretation placed on the Act in question is the same interpretation the Department has made administratively since the Act was passed. Your contentions as to the correct interpretation of the Act are reasonable; however, I am not convinced that they are sufficient to overcome the effect of the long administrative practice to the contrary and the other interpretations which have been followed. See United States v. Correll, 389 U.S. 299, 88 S.Ct. 445, 449, 19 L. Ed.2d 537 (1967).

With respect to the question of equal protection and due process we are bound by the decision of our Supreme Court in Capitol Distributing Co. v. Redwine, 206 Ga. 478 (1950).

The opinion of June 6, 1963, should not, for these reasons be reversed.

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OPINION 68-180

May 2, 1968

This is in response to your request for an official opinion on the meaning of Section 5, House Bill No. 742 (SUB).
Section 5 reads as follows:

"Officials and employees of the Corrections Department shall respect the confidential nature of information supplied by inmates who cooperate in the remedy of abuses and wrongdoing in the system. Any official or employee who breaks such a confidence and thereby subjects a cooperating inmate to physical jeopardy or harassment shall be subject to suspension or discharge."

Probably, the most important question that could arise under this Section is the use that can be made of "confidential information" received from inmates by officials and employees of the Corrections Department.

The main thrust of the Section seems to prohibit the deliberate and voluntary use of information received in confidence to subject the confiding inmate to physical jeopardy or harassment by other inmates. Although the wording is somewhat ambiguous, this restriction does not seem to forbid the communication of such information to a superior official in the Board of Corrections or a duly authorized investigating committee or court.

Section 5 requires two things to happen before an official or employee will be subjected to possible suspension or dismissal: (I) There must be a breaking of confidence; and (2) the inmate must be subjected to physical jeopardy or ha_rassment. The communication of information from an inf~rior to a superior officer would not be a "breaking of confidence" because the knowledge of an agent is presumed to be the knowledge of his principal. City of Marietta v. Godwin, 106 Ga. App. 113, 126 S. E.2d 302 (1962). Also, a similar Virginia statute forbidding the disclosing of information by a state bank examiner upon pain of being discharged was construed as forbidding only voluntary communication and did not prevent the bank examiner from giving sworn testimony before a court. Maryland Cas. Co. v. Clintwood Bank, 155 Va. 181, 154 S.E. 492 (1930). Ideally, Section 5 will be construed as Ga. Code Ann. 77-533, which

223
declares as confidential all information received by the Board of Pardons and Paroles, but excepts certain public hearings and "all information, reports and documents heretofore required by law to be made available to the General Assembly, the Governor or State auditor . . . ."Ga. Laws 1953, pp. 210, 211.
You will also note that the last sentence of Section 5 does not make suspension or discharge mandatory, but leaves this to the discretion of the Director.

OPINION 68-181 (U noffrcial)

May 2, 1968

This is in reply to your request in which you ask the Department of Law to outline for you the steps which might appropriately be taken in the event it is necessary to designate a new official organ for Banks County. You have stated in your request that the sole newspaper currently being published in Banks County may cease publication in the near future.
No newspaper may be designated as the county organ for the publication of legal notices "unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years, or is the direct successor of such journal or newspaper, and unless eighty-five percent of the circulation of such newspaper or journal Is paid circulation." Ga. Code Ann. 39-1103.
If it is impossible to have the legal advertisements published in a newspaper published at the county seat at the rates prescribed by Ga. Code Ann. 39-1105, the ordinary, sheriff, or other officer "may have said advertisements published in any newspaper in this State having the largest general circulation in the county. Ga. Code Ann. 39-1104.
In answer to your question as to whether or not the ordinary, the sheriff, and the clerk of the superior court have the authority to concurrently designate a county organ, should it become necessary, it is my opinion that you do have that authority. Your selection of a new county organ must conform to the requirements of Ga. Code Ann. 39-1103 and 39-1104, the provisions of which have been specified in this opinion.

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OPI~ION 68-182

May 3, 1968

This responds to your request for an official opinion answering the following question:

"Since the Polk County School System and the Cedartown City School System have been merged into the new Polk School District, does the Polk School District have authority to borrow funds using allocations of State capital outlay funds as security under the constitutional amendment affecting the Polk County School System?"

I understand your question to be, in essence, one of whether or not a certain special amendment to Art. VII, Sec. VII, Par. I of the Georgia Constitution (Ga. Code Ann. 2-600 I) applicable to the former Polk County Board of Education as proposed by Ga. Laws 1958, p. 609 and ratified November 4, 1958, is applicable to the present Polk School District, created by special amendment to Art. VIII, Sec. V, Par. I of the Georgia Constitution (Ga. Code Ann. 2-680 I), as proposed by Ga. Laws 1966, p. 1092 and ratified November 8, 1966.

OPINION I an inclined to doubt that the 1958 constitutional amendment that was applicable to the former Polk County Board of Education presently is applicable to the Polk County School District.
DISCUSSION
The amendment of 1966 provides, in part:

"Effective at the time and in the manner provided hereinafter, there is hereby created the Polk School District by merging the county school system of Polk County and the independent school system of the City of Cedartown." Ga. Laws 1966,pp.l092, 1097.

The laws applicable to the Polk County School District are set forth as follows:

"Except as hereinafter provided, the Polk County School District, board of education and school superintendent thereof shall be subject to all constitutional and general statutory provisions relating to county systems of education,

225
county boards of education and county school superintendents except as those provisions conflict with the provisions of this amendment to the Constitution." Id. at 1099.
The meaning of the phrase "except as hereinafter provided" is not altogether clear since the only substantive provision of the amendment following the above-quoted matter relates to the location of two or more high schools and also because that phrase would seem to be somewhat in conflict with the phrase "except as those provisions conflict with the provisions of this amendment to the Constitution." If this conflict may be resolved in favor of a construction that all constitutional provisions relating generally to county school systems shall be applicable to the Polk County School District, except to the extent such general constitutional provisions conflict with any provisions of the 1966 amendment, then the question becomes one of whether or not the 1966 amendment contains any provisions in conflict with Art. VII, Sec. VI I, Par. I of the constitution (Ga. Code Ann. 2-6001) relating generally to the borrowing power of county school systems.
The 1966 amendment contains the following provisions for succession of the rights, obligations, assets and liabilities of the two former systems:
" . . . the respective taxes levied for the support and maintenance of said systems for the calendar year 1967 shall be levied, collected and turned over to the Polk School District for its use in providing for a system of education as herein provided. . . . " Id. at 1098.
" ... all property and facilities and all assets, debts and obligations including the bonded indebtedness incurred for the benefit of the two systems ... shall become the property, facilities, assets, debts and obligations of the Polk School District. ..." Id. at 1099.
No further general provisions as to succession of rights are to be found in the 1966 amendment and no reference is made therein to the 1958 amendment which was applicable to the former Polk County Board of Education. Under these circumstances, I find it extremely doubtful that a court would hold that the Polk County School District, created by th~ 1966 amendment, succeeded to the right or authority to borrow conferred upon the former Polk

226
County Board of Education by the 1958 amendment. Quite to the contrary, in all probability a court would conclude that the People, by ratifying the 1966 amendment, intended the Polk County School District to operate under constitutional provisions applicable generally to county school systems throughout the State.

OPINION 68-183

May 3, 1968

You have requested my official opinion relative to the liability of the State for injuries to persons engaged in recreational events on property owned by the State when such property is used for such purpose with the State's consent.

As I understand your question, a group of citizens in Augusta have requested permission to use a portion of State property adjacent to the Youth Development Center in Augusta as a baseball field for children in the area. This small piece of ground is not used for any purpose at the present time.

It is a well-established rule in Georgia that a suit cannot be maintained against the State without its consent. Cardin v. Riegel Textile Corporation, 219 Ga. 695 (1964); Cannon v. Montgomery, 184 Ga. 588 (1937); Roberts v. Barwick, 187 Ga. 691 (1939). "The State of Georgia has never renounced its sovereign immunity for liability from the negligent or other tortious acts or conduct of its officers, agents, or employees, and has not consented to be sued therefor; its payment of compensation to persons so injured is purely a matter of legislative grace based upon a strong moral obligation and not upon the assumption of legal liability." Trice v. Wilson, 113 Ga. App. 715 (1966); See, Op. Atty. Gen. 1958, p. 6; 1954-56, p. 650; 1965, p. 469. I might add, however, that an individual is always liable for his own torts irrespective of the fact that he may be an employee or agent of the State and engaged in activities within the scope of such employment at the time such tortious act is committed. Op. Atty Gen. 1960-61, p. 566; Trice v. Wilson, supra.
Therefore, it is my opinion that the sovereign immunity of the State would extend to the situation which you have posed, and that the State would incur no legal liability as a result of any injuries sustained by a person attending or participating in these recreational events on State property.

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OPINION 68-184 (Unofficial)

May 6, 1968

This is in reply to your letter asking our opinion as to whether the sheriff may pay his full time deputy more than the $5,200 appropriated for such deputy by Ga. Laws 1966, p. 2233, on the basis of the overtime work performed by such deputy.

It has long been established that a public officer cannot claim extra compensation for performance of additional work within the line of his official duties, unless additional c'ompensation is provided by competent authorities, Welsch v. Wilson, 218 Ga. 843, 844 (1963); Twiggs v. Wingfield, 147 Ga. 790 (1918); Mitchell v. City of Thomasville, 50 Ga. App. 304 (1934).

There being no provision for overtime in the statute setting the deputy's compensation, I believe the sheriff would be unauthorized to pay more than the appropriated salary.

OPINION 68-185

May 6, 1968

This is in response to your request for an opinion as to whether or not the Georgia Department of Public Health is authorized to adopt and enforce by and through the Board of Health rules and reguiations establishing standards for the construction of septic tanks for housing located outside city limits.

It is my opinion that your question should be answered in the affirmative.

The Georgia Department of Public Heath, acting by and through the Board of Health, has been authorized and directed by the General Assembly to adopt and promulgate rules and regulations to effect the prevention, correction and abatement of the many and varied situations and conditions which, if not promptly checked, would militate against the health of the people of this State, Ga. Code Ann. 88-102, 88-103, 88-105, 88-110, 88-111, and is empowered to em ploy all legal means appropriate to the end of safeguarding and promoting the health of the people of Georgia. Ga. Code Ann. 88-108. Such rules and regulations must, of course, be adapted to the purposes intended and be within the purview of the powers and duties imposed upon the

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Department by the Code. Ga. Code Ann. 88-110. Specifically included in the statutory grant are powers to:
"Forestall and correct physical, chemical and biological conditions that, if left to run their course, could be injurious to health," and to
"Enter into or upon public or private property at reasonable time for the purpose of inspecting same to determine the presence of disease and conditions deleterious to health or to determine compliance with health laws and rules, regulations and standards thereunder." Ga. Code Ann. 88-108(b), U).
Although the Georgia Health Code contains no express reference to the adoption and enforcement by the Board of Health of rules and regulations relating to septic tanks, it is my opinion that the above cited provisions are entirely ample to grant to the Board such powers.

OPINION 68-186

May 6, 1968

This responds to your letter requesting an official opinion as to whether or not the Solicitor General of the Ogeechee Judicial Circuit is eligible for appointment at this time as Solicitor General Emeritus. You have asked whether or not he may retire prior to age 60 and, if so, when his benefits will begin. You also have requested advice as to whether or not he may count any time served as a City Court Judge in computing the years required for appointment.

I understand that he has 3 years creditable military service, has served 14 years as a judge of a city court from which appeals may be taken directly to the Court of Appeals, and has served as Solicitor General of the Ogeechee Judicial Circuit for 8 years.

OPINION

Assuming the correctness of these facts, and that Mr. Anderson has in all respects complied with all applicable provisions as to the appointment of solicitors general emeritus, I am of the opinion that he is eligible for appointment at this time as Solicitor General Emeritus. However, since his present appointment is dependent upon receiving credit under Ga. Laws 1966, p. 210 for time served

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as a judge of a city court from which appeals may be taken directly to the Court of Appeals, he will not be entitled to any benefits under Ga. Code Ann. Ch. 24-29A until he has reached the age of 60 years.
DISCUSSION
Ga. Laws 1966, p. 210 added the following proviso to the Act governing appointment of solicitors general emeritus, as set forth in Ga. Code Ann. Ch. 24-29A:
"Provided further, however, that in computing years of service as a solicitor general for any purpose under this Act, any time served by a solicitor general as a judge of any city court from which appeals can be taken direct to the Court of Appeals of this State may be counted in computing the number of years of service required of any solicitor general if he shall pay into the retirement fund the maximum payment provided by this Act for each year of service actually served as such a judge, plus interest on each such payment at the rate of 6% per annum, such payment to be made within six months after the approval of this Act, or within six months after taking office as a solicitor general, whichever is later in point of time, except that any solicitor general claiming any credit for service as such a judge as authorized by this proviso shall not be entitled to any retirement benefits from the retirement funds under this Act until he has reached the age of 60 years, but this exception shall not otherwise affect the eligibility of such solicitor general to become solicitor general emeritus prior to reaching the age of 60." Ga. Code Ann. 24-2909a.
Assuming that he has complied with each and every provision of the 1966 Act, as well as all other applicable provisions of law, it appears that he is eligible for appointment as solicitor general emeritus although he has not reached age 60, but may not receive any benefits under Ga. Code Ann. Ch. 24-29A until he attains age 60. The delayed eligibility for benefits results under the 1966 Act since his present appointment as Solicitor General Emeritus necessarily would have to be based in part upon his receiving credit for several years of service as a judge of a city court from which appeals may be taken directly to the Court of Appeals.

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OPINION 68-187

May 7, 1968

The herd of dairy cattle owned by a State hospital is to be auctioned by a public auctioneer and some employees of this State hospital have requested that they be allowed to bid on the cattle. You request my opinion on whether these employees would be allowed to bid on the cattle since the sale is being conducted by a public auctioneer.

Ga. Code Ann. 89-913 provides as follows:

"It shall be unlawful for any full time State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such official or employee. . . ."

Although the sale is being conducted by a public auctioneer, it is my opinion that the above law prohibits a State employee from buying any of the State-owned cattle since it is clear that such purchase would benefit or be likely to benefit the employee.

OPINION 68-188 (Unofficial)

May 7, 1968

This is in reply to the letter sent to you by Mr. John W. Smith, wherein he asked whether additional tax was due under the Georgia Real Estate Transfer Tax Act (Ga. Laws 1967, p. 788), as amended, by reason of the following circumstances:
Mr. Alwyne 0. Hutchings conveyed a piece of property to Mrs. Elsie H. Smith, in return for which Mrs. Smith paid Mr. Hutchings $7,452.00 cash, and tax was paid on this amoun( However, Mrs. Smith held a deed to secure debt from Mi-. Alwyne 0. Hutchings, Jr. for $12,000.00 which debt was settled by the conveyance from Mr. Hutchings to Mrs. Smith and the payment by Mrs. Smith of the $7,452.00 cash to Mr. Hutchings.
In Section 1 of the above Act, a tax is imposed "on each deed
.. or other writing by which lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed

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to, or vested in, the purchaser or purchasers ... when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale) exceeds one hundred dollars . . . ."
From the letter it appears that Mr. Hutchings conveyed a piece of property to Mrs. Smith, and the consideration he received from Mrs. Smith amounted to $7,452.00 cash and the extinguishment of a $12,000.00 debt owed Mrs. Smith by Mr. Hutchings, Jr. This would amount to a total consideration of $19,452.00 on which the tax has only been paid on $7,452.00. Accordingly, additional tax is due on the remaining $12,000.00 consideration received by Mr. Hutchings. That this amount was not in cash or merely extinguished his son's debt to Mrs. Smith would not alter the fact that $19,452.00 in consideration was received for the property.

OPINION 68-189 (Unofficial)

May 7, 1968

You refer to the fact that a sinking fund for a municipal bond issue contains a sum of money greater than that which will be required to pay off the principal and interest on the bonds outstanding, and ask whether the excess amount can be withdrawn from the sinking fund and transferred to the general fund.
In questions involving sinking funds and bond issues you must understand that my reply must be couched in terms of general law, which in any specific application could be rendered inapplicable through local constitutional amendments, and/or the terms of the trust indenture involved in the issuance of the bonds.

Subject to this understanding I would say concerning your question that it would ordinarily not be legal to transfer any portion of the sinking fund to the general account prior to the time the principal and interest has been paid in full and all of the bonds retired. It is a general rule of law in Georgia as elsewhere that a municipality, school board or other political subdivision possessing funds or proceeds arising from its sale of bonds or other securities, holds such proceeds in trust for the purposes for which the bonds or securities were issued; and it may not permit such funds to be diverted to or used for any other purpose. Walker v. Wheeler, 210 Ga. 432 (1954); Board of Education of Paulding

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County v. Gray, 203 Ga. 583(2) (1945); 64 C.J.S. Municipal Corporations 1934. Similarly, a municipality, county or other political subdivision is a trustee respecting funds collected from taxation for bond retirement purposes and must, under the Constitution of Georgia, place all amounts collected from taxes or any other source for this purpose which are in excess of the amount needed to pay the principal and interest on the bonded indebtedness during the year of collection, in a sinking fund for future payment of principal and interest. Art. VII, Sec. VIII, Par. I of the Constitution of the ~tate of Georgia of 1945 (Ga. Code Ann. 2-6101). Most significantly of all, this provision also expressly provides that:
"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.e. to pay off the principal and interest of the bonded indebtedness thereafter maturing]. (Emphasis added.)
It is not until the bonds are wholly retired that the trust is at an end and the transfer of any surplus in the sinking or debt retirement fund permissible. Accord, Butts County v. Jackson Banking Company, 136 Ga. 719(4) (1911); Spain v. Hall County, 175 Ga. 600, 603-4 (1932); Op. Atty. Gen. 1945-46, pp. 249, 250.

OPINION 68-190 (Unofficial)

May 8, 1968

In your letter you ask whether a widow is entitled to a homestead exemption under the following circumstances. Her husband died leaving his house and other property to his estate, but allowing his widow the use of the house and other property until her death or remarriage. There are children of the marriage, but they are not living at home with the mother-widow.
Ga. Code Ann. 92-219 provides that:

"The homestead of each resident of Georgia actually occupied by the owner as a residence and homestead, and only so long as actually occupied by the owner primarily as such, but not to exceed $2,000 of its value, is hereby exempted from all ad valorem taxation...."
Assuming that she is a resident of Georgia, actually occupying

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the house as a residence, and has made proper application for the homestead exemption, the question is whether she is the owner for the purposes of determining whether she is entitled to the exemption. In making such a determination I am purposefully omitting any consideration to other rights, other than to take under the will, she might have in her deceased husband's property, such as a year's support and dower.
As in Ga. Code Ann. 92-219, Ga. Code Ann. 92-232 defines "Homestead" as "real property owned by the applicant on January 1st of the taxable year. . . ." (Emphasis added.)
Ga. Code Ann. 92-233 further defines "homestead" as:
"(b) Where the person who is the applicant holds the bona fide fee title, (although subject to mortgage or debt deed) or an estate for life. . . ."
Ga. Code Ann. 92-234 defines "applicant" as:
"(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."
Since your letter indicates that she is not the owner of fee title, the question resolves itself into whether the interest conveyed to her created a life estate (which for purposes of the homestead exemption is treated as ownership of the property).
Ga. Code Ann. 113-90 I provides that:
"Upon the death of the owner of any estate in realty, which estate survives him, the title shall vest immediately in his heirs at law, subject to be administered by the legal representative, if there is one, for the payment of debts, the purposes of distribution, and other purposes provided for in this title. If there is a legal representative, the right to recover such realty shall be in him; if there is none, the heirs may sue in their own names. . . ."
Assuming the will created an estate during widowhood in the widow, then such estate is considered as a life estate. Ga. Code Ann. 85-603. See also Belt v. Gay, 142 Ga. 366, (1914). As the owner of the life estate, which has vested in her either immediately by operation of law or through distribution by the executor or administrator (assuming the estate has been administered), she

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would be entitled to the homestead exemption provided for in Ga. Code Ann. 92-219.

OPI:\IION 68-191

May 8, 1968

According to the information in your letter, officials of the United States Department of Justice, Bureau of Prisons, have expressed a desire to enter into an agreement with the State Department of Family and Children Services, Divison of Children and Youth, so that the facilities under the control and management of the Division of Children and Youth will accept youths that have been convicted and sentenced for violation of Federal laws. For the detention and care of these youths, the Division would be compensated by the Bureau of Prisons.

In your letter, you requested an opinion on the following questions, to wit:

(I) Is the Division for Children and Youth of our Department authorized under existing laws to accept transfer of youths from the Bureau of Prisons as indicated above for care and detention at either one of our Regional Youth Development Centers or State Youth Development Centers (now located in Atlanta, Augusta and Milledgeville) and to accept pay or reimbursement from the federal authorities for such purposes?

(2) If answer to the above question is in the affirmative, under what conditions and circumstances is the Division for Children and Youth of this Department authorized to enter into the type of agreement above indicated for this purpose?

In answer to your first question, your attention is called to Ga. Code Ann. 99-216(a) and (d) which provide that the Board for Children and Youth shall have the power and authority, as follows, to wit:

(a) To enter into contracts with Federal, State, county and municipal governments, and agencies and departments of the same; public and private institutions and agencies of this and other States; and individuals, as may be necessary or desirable in effectuating the purposes of this Chapter.

(d) To accept children and youth from Federal courts and

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provide the same social services within the scope of this Chapter for compensation and under such terms as may be agreed upon. The board may authorize the Director to enter into contracts and agreements provided for in this section subject to the approval of the board, or may, through appropriate action of the board, delegate such authority to the Director.
In the construction of statutes, the cardinal rule 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). Additionally, when language is clear and unambiguous, statutory construction is not permissible. New Amsterdam Casualty Company v. McFarley, 191 Ga. 334, 337 (1940).
Therefore, it is my opinion that the General Assembly clearly intended to authorize the State Department of Family and Children Services, by and through the State Board for Children and Youth and the Division of Children and Youth, to enter into agreements to accept children and youth from the Federal penal and corrective institutions and agencies and to provide same with the services extended by the facilities of the division to those children taken pursuant to Georgia court orders. For providing these services, adequate compensation for the costs thereof may be collected by the Division from the agency transferring the children or youth to the Georgia facilities.
In answer to your second question, it is my opinion that the conditions and circumstances under which such agreements should be effectuated is a matter within the administrative powers of the State Board for Children and Youth pursuant to Ga. Code Ann. 99-206 and can be effectuated by the adoption of such appropriate rules and regulations as the Board deems necessary.

OPINION 68---192

May 8, 1968

This is in response to your request for my opinion upon the legal questions raised by the petition based upon Ga. Code Ann. 34-1219, for your re-examination of the vote recorder system of voting in Congressional elections.

That part of the petition which poses the legal questions reads as follows:

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"In connection with such reexamination, petitioners herein point out that the use of a vote 'recorder in a Congressional election is illegal. Congress has provided as follows:
'All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law; and all votes received or recorded contrary to this section shall be of no effect. (R.S. 27; Feb. 14, 1899, c. 154, 30 Stat. 836.) 2 U .S.C.A. 9.
"The Legislature of the State of Georgia has provided in Georgia Code Section 34-103 as follows:
'(ae) The words "vote recorder" shall mean a device into which a ballot care may be inserted so that an elector may record his vote for any candidate and for or against any question by punching or marking the ballot care.'
'(af) The words "voting machine" shall not include a vote recorder or tabulating machine.'
"The Act of Congress was passed February 14, 1899, at which time voting machines were in existence. Vote recorders were not in existence at that time and have not been approved by Congress for use in Congressional elections. Any votes received or recorded by use of the vote recorder would be illegal, improper and void.
"The General Assembly of Georgia has defined a voting machine to exclude a vote recorder or tabulating machine. It is plain and palpable that the vote recorder cannot be safely used by electors in Georgia in primaries or elections for Congressmen. It is the duty of the Secretary of State to withdraw the approval heretofore given to vote recorders."
The petitioners then quote Ga. Code Ann. 34-1219(c), emphasizing the words "safely used".
Thus, it appears that the petitioners have posed two objections to vote recorders, as follows:
(1) By definition, the General Assembly has defined "vote recorders" not to be "voting machines" within the meaning of the quoted federal law; and
(2) Being unknown in 1899, vote recorders were not intended by Congress to be authorized by that federal law.

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Although it would be a boon to State's Rights, I am aware of no principle of law which would permit the General Assembly to limit the applicability of Federal law by a definition enacted by the state legislature. In fact, the law is to the contrary. As Chief Justice Duckworth said in International Bus. Mach. Corp. v. Evans, 213 Ga. 333, 335 (1957), quoting Chief Justice John Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819):
"In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other."
The Georgia General Assembly lacks the power to define the meaning of Federal Laws. See also United States Constitution Art. VI, Cl. 2; Georgia Constitution Art. XII, Sec. 1., Pars. I to Ill.
Petitioners' second objection presents a problem which has arisen frequently since the beginning of the industrial revolution. It demonstrates the problem legislative bodies, busily engaged in meeting new problems, have had in keeping existing legislation up to date, and it demonstrates the capacity of the courts to deal with each problem as it arises.
In Cain v. Bowlby, 114 F. 2d 519 (lOth Cir. 1940), an 1882 statute, applicable by its terms to locomotives, trains, stage coaches, and other public conveyances, but enacted prior to the invention of trucks, was applied by the Court to a common carrier of freight by truck. There the Court said that statutes in general and comprehensive terms, and prospective in operation, apply to persons, subjects and businesses within their general purview and scope, though coming into existence after the passage of the legislation.
Radio broadcasts were held subject to the Copyright Act in Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411 (6th Cir., 1925), cert. den. 269 U.S. 556, even though radio was developed after the enactment of the Copyright Act.
"Talking movies" were held subject to approval of a state board of censors even though "talkies" were invented after the enactment of the statute. In Re Fox Film Corp., 295 Pa. 461, 145 A. 514.

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Our Court of Appeals considered defamation by a television broadcast and called it "defamacast," while recognizing that Ga. Code Ann. 105-701 and 105-702 came to us from the common law of England.
Fallowing the inventions of what we in Georgia call "voting machines" (Ga. Code Ann. 34-103[af], 34-1201, 34-1206), about 1900, the Courts were required to consider whether statutes authorizing the use of such "machines" were valid in the face of state constitutional provisions requiring that voting be by "ballot". Illinois, Indiana, Iow a, Michigan, Minnesota, Montana, New York, Ohio, Rhode Island, and Washington (Massachusetts contra) decided in favor of the use of such machines, generally concluding that the word "ballot" meant a method of conducting elections which insured secrecy. 66 A.L.R. 855.
A court called upon to construe 2 U .S.C. 9 could justifiably conclude, as did these several state courts, that the words "written or printed ballot" therein meant a means of voting secretly.
Or such a court could justifiably conclude that the words "voting machine" therein meant a mechanical device for the casting and counting of votes, which would include vote recorders.
In the case of Sanders v. Fortson, U.S.D.C. Northern District Georgia, C.A. No. 11151, the Federal law relied upon by these petitioners, 2 U .S.C. 9, was raised in opposition to vote recorders. Although the Court has not addressed itself directly to this point as yet, neither has it ruled in petitioners' favor as might be expected if the answer were clearly that vote recorders are illegal.
Moreover, the House of Representatives has, by committee, considered the use of vote recorders in the election of Congressman Blackburn of the Fourth District. In its report, which was acted upon favorably by the House, the committee considered the procedure for voting by vote recorder and referred twice to such devices as being "voting machines", noting that they are in use in a number of states. 89 Congress, 2d Session, H.R. No. 2348, p. 12.
In view of the foregoing, it is my opinion that the petitioners' objections are not legally sustainable.

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P. S. It is noted that you received from petitioners the sum of $25 as examination fee. It is my unsolicited opinion that, unless petitioners feel that it is necessary for you to keep it to retain their legal position, this sum should be refunded as not being applicable to this type of examination, and as not being the proper amount for either your or my efforts in this regard.

OPINION 68-193 (Unofficial)

May 9, 1968

Responding to your letter, I understand that the Tax Commissioner of Talbot County, whose term of office would normally expire on December 31, 1968, will resign such office effective July 2, 1968, and you would like my opinion whether a special election need be called to fill the vacancy.

A vacancy occurring in the office of Tax Commissioner during the normal term of the incumbent is filled in the same manner as a vacancy occurring in the office of Clerk of the Superior Court. Ga. Code Ann. 92-470 I. Ga. Code Ann. 24-2709 provides that when a vacancy occurs in the office of Clerk of the Superior Court, and there is less than six months from the time the election can be called and held until the eqisting term will expire, the person appointed shall discharge the duties of the office for the balance of the term and there shall be no special election.
Accordingly, I believe that if you do not plan to have an election until the office becomes vacant on July 2, 1968, then it will not be necessary to conduct a special election to fill the vacancy as the balance of the term will be less than six months.

OPINION 68-194 (Unofficial)

May 10, 1968

You ask how a tax receiver is to be paid the commissions due him as a result of the motor vehicle ad valorem tax procedure provided in Ga. Laws 1966, p. 517 (Ga. Code Ann., Ch. 92-15). You also ask how these commissions are to be computed, and who is to make payment thereof to the tax receiver.

Ga. Code Ann. 92-530 I (as amended particularly by Ga.

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Laws 1953, Jan.-Feb. Sess., p. 234) provides the commissions allowed each receiver and collector of State and County taxes. These commissions are based on a percentage of the "net tax digest", which has been defined as "the total amount of taxes due on all taxable property . . . ." Rice v. Board o( Commissioners of Roads and Revenue of Putnam Countr, 107 Ga. App. 207 (1963), excluding the property of taxpayers returned exclusively to the Revenue Commissioner and not entered on the tax receiver's digest. Glrnn Countr v. Dubberlr. 148 Ga. 290 (1918).
Ga. Laws 1966, p. 5 17, was not intended to change the basic law relating to the ad valorem taxation of personal property. Its main objective was to provide a tool whereby a greater amount of ad valorem tax on a particular class of personal property might be collected, since many taxpayers had not been returning their motor vehicles for taxtion. Motor vehicles are taxable property subject to county personal property ad valorem taxation, and the tax assessed thereon is to be entered on the tax receiver's digest in the same manner as other personal property assessed for ad valorem taxation is entered on such digests.
The amount of commissions to which a tax receiver is entitled will still be determined by the value of the net tax digest, which theoretically will be greater by reflecting the ad valorem tax assessed against motor vehicles heretofore unreported, and his commissions will still be paid him by the tax collector "upon the production of the Comptroller General's (now Revenue Commissioner's) receipt for his net digest, with a specification thereon for the amount of commissions to which he is entitled . . . . " Ga. 1937-38, Ex. Sess., pp. 297, 299, 4; Ga. Code Ann. 92-5305.

OPINION 68-195 (Unofficial)

May 13, 1968

You ask whether United States Series E Savings Bonds and Shares of Stock held in mutual funds are subject to the Georgia Intangible Tax under Ga. Code Ann. 92-115, et seq.
As to United States Series E Savings Bonds, Section 4(a) of the Intangible Tax Act (Ga. Laws 1937-38, Ex. Sess., pp. 156, 161; Ga. Code Ann. 92-123), as amended, provides that:

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"Every person owning intangible personal property, classified for taxation under the terms of Section 3 of this Act (Ga. Code Ann. Sections 92-116 through 92-123) except those intangibles classified to be taxed as heretofore provided by Jaw is hereby required to file a return thereof describing in detail each item (including exempt as well as taxable property except obligations of the L'nited States) with the Commission (now the Revenue Commissioner) ...." (Emphasis added).
Series E United States Savings Bonds are authorized by 31 U.S.C.A. 577(c) and such bonds are obligations of the United States. The issuance of United States Savings Bonds under this Section is an exercise of the power of Congress to borrow money on the credit of the United States. L'.S. v. Dauphin Deposit Trust Co., 50 F. Supp. 73 (D.C. Pa., 1943). See also In Re. Hendricksen's Estate, 156 Neb. 463, 56 N. W. 2d 711 (1953 ), cert. den. 346 U.S. 854, 73 S. Ct. 68, 98 L. Ed. 368.
In addition to the above, it has been held that a United States Savings Bond is a contract between the federal government and the purchaser, and Treasury regulations governing such bonds are incorporated into such contract by reference and are beyond reach of state law to modify or destroy. In Re Hendricksen's Evtate, supra, (10) (13); Ex Parte Little, 259 Ala. 532, 67 So. 2d 818 (1953).
The Regulations promulgated by the Secretary of the Treasury, 31 C. F.R., Chapter II, Section 316.9, provide that such bonds "are subject to estate, inheritance, gift, or other excise taxes, whether Federal or State, but are exempt from all taxation now or hereafter imposed on the principal or interest thereof by any State, or any of the possessions of the United States, or by any local taxing authority." The Georgia intangible tax is an ad valorem, not an excise, tax. See also 31 U .S.C. 742.
Accordingly, United States Series E Savings Bonds held by mutual funds are exempt from the Georgia Intangible Tax.
The second part of your question is related to the taxation of corporate stocks. The first question to be resolved is whether the property itself is subject to the tax. Since you have not enumerated which stocks are questioned, I can only refer you to Ga. Code Ann. 92-162(a), which section sets out the corporate stocks subject to the Georgia Intangible Tax.

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Assuming that the stocks in question are subject to the intangible tax, the next question is whether the ownership of the stocks by a mutual fund will exempt them from the tax. Ga. Code Ann. 92-123, as well as Art. VII, Sec. I, of the Constitution of Georgia and Ga. Code Ann. 92-20 I, list the organizations owning taxable property which are exempt from ad valorem tax. Assuming that your language "Stocks held in mutual funds" is analogous to ownership of the stock, neither the sections cited nor the Constitution exempt from ad valorem taxation taxable property owned by a mutual fund.
Accordingly, if the stocks owned by a mutual fund are otherwise taxable, the fact that ownership is vested in a mutual fund will not abrogate the tax liability imposed on such property.

OPINION 68-196 (Unofficial)

May 14, 1968

You as ked our opinion on the following questions:
I. Is a person who has moved from Schley County but who is planning to return to the county eligible as candidate for a position on the Schley County School Board; and 2. Must a member of the Tax Equalization Board, which I assume to be the same as the County Board of Tax Assessors, be out of office for twelve months before he can qualify for any other office?
The qualifications for members of the Schley County School Board provide among other things that, "[N]o person shall be eligible to hold office ... who is not qualified to vote for members of the General Assembly." Georgia Constitution Art. VIII, Sec. V, Par. I, as amended by Ga. Laws 1950, pp. 490, 491 ratified Nov. 7, 1950. Accordingly, the answer to your question depends on whether your prospective candidate is qualified to vote in Schley County for members of the General Assembly.
In order to register to vote for members of the General Assembly, a person must have been a resident of this State for one year and a resident of the county for at least six months preceding the date of the primary or election at which he desires to vote. Ga. Code Ann. 34-602(d). "Residence" as contemplated by the election code, however, means "domicile",

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Ga. Code Ann. 34-103(aa). Ga. Code Ann. 34-632, a copy of which is enclosed herewith, contains the rules for determining residence or domicile. I am unable to determine from the facts contained in your letter whether the person whom you have in mind is a domiciliary of Schley County or not. Generally, however, a person may reside at any number of places but may only have one domicile. Commercial Bank of Crawford l'. Pharr, 75 Ga. App. 364 (1947). What distinguishes "domicile" or legal voting residence from mere residence is a question of intent. Worsham v. Ligon, 144 Ga. 707 (1916). If a person changes his residence but continues to regard his first residence as the home to which he will someday return to remain indefinitely, then the first residence will be his domicile. Worsham. supra. Indeed, there is a presumption that the established domicile continues unless the individual has left there under circumstances suggesting the impossibility of return. G. M.A. C v. Williams, 103 Ga. App. 109 (3) ( 1961 ).
"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." Worsham, supra 144 Ga. 707 (2).
Accordingly, if a registered elector of Schley County left the county temporarily and lived elsewhere with the intention of returning to Schley County and, if such person did not take any action which would indicate an intention not to return to Schley County, then I believe that such person would be qualified to run for the Schley County School Board.
Turning to your second question, Ga. Code Ann. 92-6903 provides that members of the Board of Tax Assessors are ineligible to hold any State, county or municipal office during the time they hold their offices. (Emphasis added.) I am aware of no Ia w which would preclude such person from qualifying as a candidate for any office after he concludes his service on such board.

OPINION 68-197 (Unofficial)

May 14, 1968

This is in response to your letter and the audit reports for "X" County Board of Education attached thereto.

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The reports show that during 1966 "X" County Board of Education expended a sum of $1,993.86 for basketball uniforms and as of June 30, 1967 this sum had not been refunded to the general school fund of "X" County from the Athletic Association or teams using these uniforms.
This office, as you already are aware, has written various opinions concerning the impropriety of using monies from the common school fund to support extracurricular activities, such as football and basketball teams. The impropriety of such expenditures, as pointed out in the opinion of this office set forth in the audit report, is fully applicable to the purchase of uniforms for football and basketball teams. Based upon the facts as stated in the audit report, I therefore concur with your view that the sum in question should be refunded to the general school fund of "X" County from the athletic association or teams using the uniforms.

OPINION 68-198 (Unofficial)

May 14, 1968

This is in reply to your request for an unofficial opinion on the question whether or not any criminal provision applies to (I) false statements made in connection with registering and licensing motor vehicles, and (2) tendering a bad check for payment of tag and taxes.

Ga. Code Ann. 68-9902 provides that:

"Any person who shall make any false statement in any application for the registration of any motor vehicle, or in transferring any certificate of registration, or in applying for a new certificate of registration, shall be guilty of false swearing, whether or not an oath is actually administered to him, if such statement shall purport to be under oath. On conviction of such offense such person shall be punished as provided by section 26-4004. . . ."

"26-4004. Punishment j(Jr false swearing.-Any person who shall commit the crime of false swearing shall be punished by imprisonment and labor in the penitentiary for not less than three years nor more than ten years."

There is no specific criminal provision which penalizes the tendering of a bad check per se, and the proper civil remedy would

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be found in those prov!Slons relating to tax executions against defaulting taxpayers. See Ga. Code Ann. Chs. 92-73 thru 92-83. However, if the bad check is tendered with "intent to dej'raud" as defined in Ga. Code Ann. 13-9933(a) and (b), the drawer is guilty of a misdemeanor. Ga. Code Ann. 13-9937,27-2506.

OPINION 68-199 (Unofficial)

May 14, 1968

This responds to your letter requesting an opinion as to whether or not your qualifying as a candidate to succeed yourself as Judge of the Court of Appeals of Georgia would adversely affect your status, rights and benefits as Judge of the Superior Courts Emeritus.
Enclosures received with your letter reveal that by Executive Order the Governor accepted your resignation as Judge of the Superior Court of the Atlanta Judicial Circuit effective June 30, 1967 and appointed you Judge of the Superior Courts Emeritus effective June 30, 1967. By a second Executive Order dated June 29, 1967, the Governor appointed you as Judge of the Court of Appeals of Georgia to succeed the Honorable John E. Frankum, such appointment being for a term beginning July 1, 1967 and extending until the next general election and until your successor should be elected and qualified.
You state that you are considering qualifying as a candidate for nomination in the September 1968 State Democratic Primary for the remainder of the unexpired term of Judge Frankum and will, if nominated, be a candidate for said office in the November General Election.
OPINION
Your qualifying as a candidate to succeed yourself as Judge of the Court of Appeals of Georgia would not cause a forfeiture of your status, rights and benefits as Judge of the Superior Courts Emeritus; however, your qualification for or election to the position of Judge of the Court of Appeals would result in a suspension of your status, rights and benefits as Judge of the Superior Courts Emeritus during the period of time that you would hold the office of Judge of the Court of Appeals.

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DISCUSSION
The Act governing the appointment of Judges of the Superior Courts Emeritus was amended in 1960 by adding the following prOV!SlOn:
"Notwithstanding any other provisions of this Act, in the event that any Judge of the Superior Court shall become eligible for appointment or shall have actually been appointed Judge of the Superior Courts Emeritus, and while so eligible for appointment or holding such an appointment, shall be elected or appointed to, or shall qualify for an office of profit or trust under the Constitution of the United States or the Constitution of Georgia, his right to appointment as Judge of the Superior Courts Emeritus or to continue to hold such an appointment and to draw the salaries fixed therefor under this Act, shall be suspended during the period of time that he shall hold such office; provided, that upon ceasing to hold such office, he shall then be entitled to appointment to the office of Judge of the Superior Courts Emeritus under this Act, or to reappointment to said office with all the obligations, rights and duties herein prescribed, his compensation as Judge of the Superior Courts Emeritus in such event to be the same amount as would be received by him as Judge of the Superior Courts Emeritus if his appointment or reappointment were his initial appointment as J~dge of the Superior Court Emeritus. The purpose of this provision is to permit any Judge of the Superior Court who may have been appointed Judge of the Superior Courts Emeritus, or who may be eligible for appointment as Judge of the Superior Courts Emeritus to accept some other office of profit or trust under the Constitutions of the United States or of the State of Georgia, without affecting his then existing rights under this Act, except to suspend the right to hold said office and receive the salary provided therefor while holding such other office. During the time that such Judge of the Superior Court or Judge of the Superior Courts Emeritus is holding another office under the Constitutions of the United States or of the State of Georgia as herein provided, he shall not be required to make any contributions under the provisions of this Act." Ga. Laws 1960, p. 161, 164 (Ga. Code Ann. 24-2605 a.l ).

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The last-quoted provisiOn would provide by itself a full and complete answer to your question, were it not for two Acts of the General Assembly enacted in 1962 and 1964. The Act creating emeritus offices for certain specific State officials, Ga. Laws 1957, p. 206 (Ga. Code Ann. Ch. 78-12), was amended in 1962 by adding the following:
"No person holding and enjoying, or eligible to hold and enjoy, the pay, perquisites, duties and responsibilities of an emeritus office or emeritus status shall offer or qualify as a candidate in any primary, special, general or other election as a candidate for any other public office provided for under the terms of the State Constitution, or any Ia w made pursuant thereto, unless he shall first tender his resignation to the Governor resigning his said emeritus office or emeritus status, or eligibility therefor, and upon such tender of said resignation all rights, pay, perquisites, duties, eligibility and responsibilities pertaining to said emeritus office or emeritus status shall cease forthwith and be forfeited. The provisions of this section shall apply to all emeritus offices and emeritus status created under the Act approved March 7, 1957, hereinabove referred to, and any and all other State emeritus offices and State emeritus status now existing by virtue of Acts of the General Assembly of Georgia." Ga. Laws 1962, pp. 602, 603 (Ga. Code Ann. 78-1206).
Since the 1962 Act does not refer to the 1960 Act, the narrow legal question presented is whether or not the words "and any and all other State emeritus offices and State emeritus status now existing by virtue of Acts of the General Assembly of Georgia," as found in the 1962 Act, repeal by implication the 1960 Act relating to the suspension of the rights of Judges of the Superior Courts Emeritus. For several reasons, I would suggest that such an implied repeal has not occurred. First, repeals by implication are not favored. Morris v. City Counsel of Augusta, 20 I Ga. 666, 672 (1946 ). Second, forfeitures of rights, such as provided by the 1962 Act, are not favored. Roby v. Newton, 121 Ga. 679, 682 (1904). Third, statutes providing retirement benefits for public officials are entitled to liberal construction because such statutes advance the legitimate governmental purpose of securing and retaining more desirable public officials. City of Macon v. Herrington, 198 Ga. 576, 589 (1944), Burks v. Board of Trustees, 214 Ga. 251, 254 (1958), Griffin v. Bass, 96 Ga. App. 892 (1958).

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Fourth, where possible, all words in a statute should be given meaning, Fal/igant v. Barrow, 133 Ga. 87, 92 (1909), and thus it must be presumed that the General Assembly intended the word "State" as a limitation or restriction upon the words "emeritus offices" and "emeritus status" as used in the 1962 Act. Applying these rules of construction, I would conclude that the General Assembly intended the forfeiture provided in the 1962 Act to be applicable only to State officials holding offices similar to those expressly set forth in Ga. Code Ann. Ch. 78-12, and did not intend the 1962 penalty to apply to Judges of the Superior Courts Emeritus.
In 1964 the General Assembly further amended the 1957 Act creating emeritus offices for certain specified State officials so as to provide that persons who take office after a certain date shall be members of the Employees' Retirement System and shall not be eligible for emeritus status. The following proviso appears at the end of Section I of the 1964 Act:
"Provided, however, that the provisions of this Act, and of any amendatory Acts thereto, shall not be applicable to any judge of the superior court or any judge of the superior courts emeritus." Ga. Laws 1964, pp. 683, 684 (Ga. Code Ann. 78-120 I).
The words "this Act" as used in the proviso are not altogether clear in meaning since the section of the 1964 Act in which the proviso appears contains no provisions which, by any stretch of the imagination, could be considered applicable to Judges of the Superior Courts Emeritus. I am forced to conclude, by process of elimination, that the General Assembly must have intended the proviso to be applicable generally to the 1957 Act creating emeritus offices for certain specific State officials, as amended in 1962. Therefore, even'if the forfeiture provided in the 1962 Act once was applicable to Judges of the Superior Courts Emeritus, this forfeiture is not now applicable to such judges.
In summary, I am of the opinion that even if one concedes, for purposes of argument, that the forfeiture provision of the 1962 Act once was applicable to Judges of the Superior Courts Emeritus, which concession I am unwilling to make, one presently must conclude, I believe, that the forefeiture provision has not been applicable to such judges since the effective date of the 1964 Act.

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Rules of statutory construction being dispositive of the question presented, it is not necessary to inquire into the question of whether or not your status, rights and benefits as a Judge of the Superior Courts Emeritus are so far vested that they may not be divested by the forfeiture provisions of the 1962 Act. See Bender v. Anglin, 207 Ga. 108 (1950).

OPINION 68-200

May 14, 1968

This is to supplement Opinion 68-165 in w.hich I officially ruled that when a superior court revokes its original probationary order and sentences a defendant to a definite term of years and suspends the balance of the original probationary sentence, then this same superior court cannot in a later term revoke and amend or modify the first revocation order by completely suspending the service of time as imposed in the original revocation order. In your original request for an opinion you included a second request for our official opinion on a subsidiary question of whether or not a superior court has the authority to amend a sentence after the term of court has expired at which time the sentence was imposed by amending such sentence nunc pro tunc thereby decreasing the actual time to be served by the defendant.

For purposes of clarification, a summary reiteration of the factual situation upon which this question is based is as follows: The defendant "A" entered a plea of guilty in "X" County Superior Court on May 4, 1967, and received a five-year probationary sentence. On September 28, 1967, the Superior Court of "X" County revoked its original probation order and sentenced the defendant to serve two years imprisonment and suspended the balance of the probationary sentence. On October 20, 1967, the defendant "A" entered a plea of guilty in "Y" County Superior Court and received a two-year sentence. This sentence was to run concurrently with the sentence which the defendant was presently serving from the "X" County conviction.
On February 27, 1968, the Superior Court of "X" County attempted to further modify its revocation order of September 28, 1967, by ordering that the entire service of this sentence was to be suspended. Following this attempted change in the "X" County sentence the Superior Court of "Y" County on March 22, 1968, entered an order nunc pro tunc ordering that its own

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sentence of October 20, 1967, was to be rescinded and vacated stating:
"It was the intent of the court in passing the above sentence that the said sentence should expire when the sentence in 'X' [Name of county omitted] County expired, so that defendant should be released from confinement on the sentence of this court at the same time defendant is released from confinement on the sentence from 'X' [Name of county omitted] County.
"It is now so ordered nunc pro tunc."
In my opinion dated April 22, 1968, I officially ruled that the Superior Court of "X" County could not by its order of February 22, 1968, revoke and modify its order of September 28, 1967, due to the fact that the provisions of suspension in its original revocation order did not have the effect of placing the defendant on probation, thus, once the probated sentence was revoked and the probationer was sentenced to a definite period of years imprisonment, the remainder of his sentence being suspended, then, the court lost jurisdiction to further modify or amend the sentence of the defendant in a later term of court.
Therefore, computing these sentences pursuant to this opinion, it is my understanding that the two-year portion of the revoked probated sentence will expire with all good-time allowance on February 3, 1969. Furthermore, if the service for the sentence dated October 20, 1967, out of the Superior Court of "Y" County is computed from this sentencing date the release date for this inmate pursuant to this sentence would be February 25, 1969, twenty-two (22) days after the release date on the "X" County sentence. These facts having been brought to our attention the question now arises as to the validity of the "Y" County Superior Court's power by its order dated March 26, 1968, to amend nunc pro tunc the original sentence of two years and stating that it was the intention of the court that this sentence not only was to run concurrently with the sentence which the defendant was presently serving out of "X" County but that it was the further intention of the court that this sentence should end at the same time that the sentence out of "X" County is terminated. The effect of this "Y" County nunc pro tunc order would be to decrease the length of service of time on its original sentence by twenty-two (22) days.

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And it is to be further noted that this order reducing the length of said sentence was entered at a later term of court.
It is my official opinion that under the facts as stated above the Superior Court of "Y" County could not reduce the length of service of its original sentence imposed on October 20, 1967, by a nunc pro tunc order entered in that court at a later term, such as the order entered in the instant case.
It is to be noted that the original sentence imposed by "Y" County Superior Court merely stated that this sentence was to run concurrently with the sentence at that time being served by the
defendant imposed on him by "X'" County Superior Court. This
concurrent sentence did not state that this sentence was to expire on the same date as that sentence imposed by "X" County Superior Court. It is only in the later nunc pro tunc order that we find a statement of the court that this sentence was to expire on the same date as the sentence imposed by "X" County Superior Court. Thus, this order in effect modifies and amends the original sentence of this court by decreasing the length of time at which the defendant will be required to serve.
A superior court, as a general rule has plenary power over its judgments "during the term at which they were rendered and may amend, correct or revoke for the purpose of promoting justice." Gobles, Warden v. Hayes, 194 Ga. 297, 300 (1942). Also, 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.. Stanely, 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). Similarly, where for some reason a prisoner is not sentenced at the term of court for which he was convicted, he may be brought back before the .court at a later term and have sentence imposed upon him. See Penny v. Horton, 197 Ga. 824(2) (1943).
However, 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. As to this question, it is a well established principle of law that the court is without the power to modify or amend the sentence after the term of rendition has expired. Long v. Stanley, 200 Ga. 239, 241 (1945); Shaw v. Benton, 148 Ga. 589(1) (1918);

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Auldridge v. Womble, 157 Ga. 64 (1923); Stockton v. State, 70 Ga. App. 17 (1943).
Therefore, since the effect of the nunc pro tunc order of "Y" County Superior Court was not merely to explain the intention of the court in imposing its original sentence but actually modified and amended its original sentence by decreasing the length of time to be served under said sentence then this action of the court does violence to the rule established by the appellate courts of this State in the above-cited cases. Therefore, when the Superior Court of "Y" County passed this order modifying and changing its original sentence, such order was void and the court was without jurisdiction to alter the sentence originally imposed. See, also, Op. Atty. Gen. to Mr. J.O. Partain, Jr., Member, State Board of Pardons and Paroles, dated May 24, 1967, citing Porter, Solicitor General v. Carmony, Sheriff, 148 Ga. 261 (1918) and Shaw v. Benton, 148 Ga. 289 (1918).
It would seem to this writer that the law is clear and unambiguous in matters of this type. It is obvious that if the Judges of the Superior Courts desire authority to amend sentences after the term of court in which sentence is imposed, they should secure such authority through an act passed by the General Assembly. Under our present system in this State, plenary power is granted to the State Board of Pardons and Paroles, and it is felt by this writer that this is the proper authority to modify a sentence under circumstances such as those enumerated herein.

OPINION 68-201

May 14, 1968

This is in reply to your request for my official opinion on whether or not a medical examiner violates any constitutional prohibition when pursuant to the Post Mortem Examination Act, Ga. Code Ann. 21-227, he extracts a blood specimen from a person admitted to a hospital as a result of any casualty and who is unable to give his consent at the time of the taking of the sample and, secondly, whether a medical examiner would be subject to civil liability when pursuant to the provisions of this Act a blood sample is taken from a person who is killed as a result of any casualty.

It is my official opinion that when a medical examiner, acting

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in accordance with the provisions of the Georgia Post Mortem Examination Act, Ga. Code Ann. 21-228, extracts a blood sample from a person who has been involved in a casualty and is unable to give his consent to such taking does not violate any of the constitutional prohibitions against self-incrimination as embodied in the Fifth Amendment and implied through the Due Process Clause of the Fourteenth Amendment to the State or the Fourth Amendment prohibition against unreasonable searches and seizures as applied through the Fourteenth Amendment to State prosecutions.
Secondly, it is my official opinion that a medical examiner who acts pursuant to the authority of the Georgia Post Mortem Examination Act, Ga. Code Ann. 21-228, is not subject to civil liability when said examiner takes a blood specimen from a person killed in a casualty as defined in the Georgia Post Mortem Examination Act, supra.
It is my understanding that the crime laboratory in cooperation with the Health Department is engaged in a cooperative program initiated for the collection of blood samples from traffic fatalities and from subjects who were involved in accidents who are unconscious. I further understand that the medical examiners for the State have some reservations and qualms concerning the taking of blood samples in that there is apprehension that some question will be raised as to the violation of an unconscious person's constitutional rights and further fear of ci vii action brought by the family of a traffic victim whose blood sample is taken by a medical examiner.
In numerous United States Supreme Court decisions the principle has been espoused that the taking of blood samples from a person detained with reasonable cause does not violate the prohibitions against self-incrimination as embodied in the Fifth Amendment and applied by the Due Process Clause of the Fourteenth Amendment to the State or the Fourth Amendment prohibition against unreasonable searches and seizures applicable through the agency of the Fourteenth Amendment to State actions. See Leeper v. Texas, 139 U.S. 462, 35 L. Ed. 225 (1891); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, l L. Ed. 2d 448 (1957). One exception to this principle is that these particular tests must not be accompanied by a forcible or

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offensive examination or testing of a subject's body. Under this exception the courts having stated that the essential fairness required by the Due Process Clause is violated by a forcible or offensive examination and testing of a subject's body and the test or yardstick for what is essential fairness depends upon whether the particular procedure used in the testing and the circumstances giving rise to its use is regarded as violating the community's sense of decency and its interest in protecting those suspected of crimes from torture or outrageous physical affronts. See Rochin v. California, 342 U.S. 165,.72 S. Ct. 205, 96 L. Ed. 183, 25 A.L.R. 2d 1396 (1952); Breithaupt v. Abram, supra.
The legal authority authorizing the Georgia medical examiners to extract blood specimens from those who are unconscious as a result of a traffic accident or those who are fatalities in such accidents if found in the Georgia Post Mortem Examination Act, Ga. Code Ann. 21-227 (Ga. Laws 1953, Jan.-Feb. Sess., pp. 602-613; 1960, pp. 1009-1019; 1961, pp. 437-438):
"Blood specimens from persons unable to give consent; fee of medical examiner.- When any person has been admitted to a hospital or morgue as a result of any casualty and for any reason whatsoever is unable to give consent to the taking of a sample of blood for analytical purposes, the peace officer in charge of the investigation of the circumstances surrounding the casualty may summon a medical examiner for the purpose of extracting a blood specimen in order to analyze the content thereof . . . . The blood specimen so taken shall be submitted to the Crime Laboratory for analysis by the medical examiner or the peace officer in charge, and a certified report submitted by the )aboratory to the submitting officer."
Thus, pursuant to the above-quoted section a peace officer in charge of an investigation of the circumstances surrounding the casualty in which the unconscious person or deceased person was involved is authorized to summon a medical examiner for the purpose of extra.cting blood specimens to assist in his
a investigation. Thus, when medical examiner is requested by the
investigating officer, he is authorized under the provisions of the Code section to extract blood specimens either from an unconscious person or a deceased victim.
The case of Breithaupt v. Abrams, supra, involved the taking

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of a blood sample from an unconscious person and raised the question of whether or not this taking violated the constitutional prohibitions against the compelling of a person to be a witness against himself and the prohibitions against unreasonable searches and seizures. The Supreme Court of the United States held in this case that this extraction of the blood sample was not a violation of any constitutional rights of the victim nor did this extraction shock the conscience or offend the sense of justice of the community. Also, the Supreme Court in Schmerber v. California, supra, went further by stating that where there was ample justification for a police officer's conclusion that a defendant was under the influence of alcohol and the blood extraction was made in a simple and medically acceptable manner by a physician in a hospital environment then such an extraction would not violate any constitutional right of the subject. It is significant to note that the court further stated that it makes no difference whether a person states unequivocally that he objects to the test or resorts to physical violence and protest or is in such condition that he is unable to protest.
Although this provision of the Georgia Post Mortem Examination Act, supra, has not been challenged in our State Supreme Court on the basis that an extraction of a blood sample from an unconscious person would be an unlawful search and seizure or would possibly result in compelling this person to testify against himself, yet, it can be concluded that based upon the decisions of the Supreme Court of the United States in Schmerber v. Breithaupt, supra, it can be safety concluded that the extraction of blood specimens pursuant to this Code provision would not be held as a violation of an unconscious victim's constitutional rights.
In regard to your second question concerning the civil liability of a medical examiner for the taking of a blood sample, it should be noted that it is a well established principle that ordinarily a public officer is not liable in a private action for acts performed in good faith within the scope of his authority. As a general rule public officers when acting in good faith within the scope of their authority are not liable in private actions and the application of this rule of immunity cannot be avoided by allegations that the officer involved was acting or is being sued in his personal capacity. Mistakes of judgment or improper construction of the

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law defining his duties by a public officer acting in the discharge of his official duty do not give rise to a personal action against him, although some individual may suffer loss as a result thereof. See 67 C.J.S. Officers 125. Georgia courts have espoused this general principle also stating that public officers are not liable to private actions when acting in good faith and within the scope of their duty. See Vickers v. Motte, 109 Ga. App. 615 (1964); Richter v. Harris, 62 Ga. App. 64 (1940). While public officers are agents, for reasons of public policy, their individual liability is governed by rules different from those applying to other agents, and they may not be held personally liable for their actions made in behalf of the public in which they are required to exercise judgment and discretion unless they act corruptly or maliciously. See Commercial Trust Company of Hagerstown v. Burch, 267 F. 907 (1920). The only exception to this principle is that the public officer cannot do things unauthorized by law nor act in a wanton or malicious way with the intent to injure the property of another. See Vickers v. Motte, supra.
Furthermore, it is my opinion that a medical examiner comes within the scope of the definition of a public officer. Ga. Code Ann. 21-202 (4) defines the term "medical examiner" as used in the Post Mortem Examination Act as:
" . . . The licensed physician or pathologist designated by the Director of the State Crime Laboratory and the Director of the Department of Public Health pursuant to 21-203 and 21-205 for the purpose of performing post mortem examinations and/ or autopsies as required herein. The power and authority conferred upon said medical examiner by this Chapter shall be extended to the Director of the State Crime Laboratory or any qualified member or members of his staff whom he has designated may, when so requested, act with all the authority and perform any duty of a medical examiner designated pursuant to 21-203 and 21-205."
The method of appointment of the State medical examiners and their duties are set forth in provisions of Ga. Code Ann. 21203 and 21-205. An individual who has the designation or title given by him by law, and who exercises functions concerning the public assigned to him by law, is a public officer; now is he any of the less a public officer because his authority or duty is confined to narrow limits. Smith v. Mueller, 222 Ga. 186(1)

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(1966); Bradford v. Justice of the Inferior Court, 33 Ga. 332 (1862); Polk v. James, 68 Ga. 128, 131 (2) (1878); Templeman v. Jeffries. 172 Ga. 895, 901(2) (1931). "An office is a public station or employment conferred by the appointment of the government. Any man is a public officer who is appointed by the government and has any duty to perform concerning the public." Polk v. James, supra. "Public officers are, in this country, but the agents of the body politic, constituted to discharge services for the benefit of the people under laws which the people have prescribed." Walton v. Davis, 188 Ga. 56 (1939).
Although the Georgia courts have never defined the term "official act" it is to be noted that the high courts of other states have agreed that an official act is an act or duty imposed on an officer by law, that is, an act which the law required him officially to perform. See 29 Words and Phrases 137 (1967 Supp.) citing Libby v. Schmidt, 179 Kan. 683, 298 P.2d 298, 300; Wells v. State, 174 Tenn. 552, 129 S. W.2d 203, 204; Aetna Casualty and Surety Company v. Love, 132 Tex. 280, 121 S. W.2d 986. Therefore, based on the above-cited authorities and conclusions that a medical examiner is a public officer and based on the definition of an official act it is my opinion that when a medical examiner acts pursuant to the provisions of Ga. Code Ann. 21227 he is performing an official act. Thus, based on the abovecited authority in performing this official act the medical examiner could not be subjected to a civil action unless said examiner acted corruptly, willfully or maliciously in carrying out his duty.
You attention is directed to Op. Atty Gen. 1960-61, p. 342, in which this Department rendered an opinion which reached a different result as to the question of civil liability. However, that opinion was rendered prior to the enactment of Ga. Code Ann. 21-227 which authorizes the taking of blood specimens from deceased victims of an accident.
In conclusion, as a further clarification of my opinion regarding this question of civil liability; it should be pointed out that although the law will protect a public official from civil actions when he acts within the scope of his official duties; this same statutory authority cannot be used as a shield or umbrella by a public official when he acts negligently in the performance of these duties. Thus, the medical examiners must bear in mind that

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although they are acting in their official capacity when they obtain blood specimens pursuant to the hereinbefore quoted Code section they are still bound to perform these activities in a non-negligent manner and are required to use the procedures and techniques accepted by their profession.

OPINION 68-202 (Unofficial)

May 15, 1968

To the best of my knowledge there have been no interstate compacts between either Georgia and Florida or Georgia and South Carolina affecting interstate boundaries in the territorial sea. I would presume that principles of international law would be applied should any dispute arise.

The river boundary between the states of Georgia and South Carolina was fixed by the Beaufort Convention of April 28, 1787, and, since that river boundary fails to follow the general or "thalweg" rule, the convention may have some bearing on your problem in determining a division point along the base line for projection of the lateral limit of Georgia's territorial sea. There is a detailed discussion of this compact in Georgia v. South Carolina, 257 U.S. 516, 42 S.Ct. 173, 66 L. Ed. 347 (1922).

OPINION 68-203 (Unofficial)

May 15, 1968

You ask whether a promissory note for $13,000 secured by a deed to secure debt given as part of the consideration in a sale of real estate is a lien or encumbrance remaining on the property at the time of sale, within the meaning of Section I of the Georgia Real Estate Transfer Tax Act (Ga. Laws 1967, p. 788), as amended, when such promissory note and deed to secure debt are executed and delivered prior to the delivery of the warranty deed by the vendor to the purchaser.

As you have stated, section one imposes "on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed . . . when the consideration or value of the interest or property conveyed (exclusive of the value of any lien

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or encumbrance remaining thereon at the time of sale) exceeds one hundred dollars, a tax at the rate of fifty cents for the first five hundred dollars or fractional part thereof, and at the rate of 10 cents for each additional one hundred dollars or fractional part thereof."
This Act was adopted from 26 U.S.C. 4361, has an effective date commencing with the expiration of the Federal Act, and is practically identical in language with the Federal Act.
Accordingly, in construing this Act, great weight would be given to constructions placed on the analogous Federal Act by the appropriate federal authorities. Mdlho!land v. Oglesby, 114 Ga. App. 745, 152 S.E. 2d 761 (1966), reversed on other grounds in 223 Ga. 230, 154 S. E. 2d 194 (1967).
"This is an excise on the privilege of selling realty, and the tax attaches when the property is sold, the word 'sold' usually meaning the transfer, or the agreement to transfer subsequent for a consideration . . . . " Berry v. Kavanagh, 137 F. 2d 574 (6th Cir., 1943).
"The statute permits the tax to be measured by (I) the consideration; (2) the value of the interest conveyed; or (3) the value of the property conveyed. . . . " Orpheum Bldg. Co. v. Anglin, 127 F. 2d 478 (9th Cir., 1942).
Here we are concerned with the third alternative. The Commissioner of Internal Revenue has promulgated regulations interpreting the language of the statute in question, as well as citing examples of how to compute the tax under a situation similar to yours. Regulation 47.4361-1 (b) reads as follows:
"Rate and Computation of tax. The rate of tax is 55 cents on each $500 or fractional part thereof of the net consideration paid for, or the net value of the realty conveyed, that is, the gross consideration or gross value less, in either case, the amount of all liens or encumbrances on the realty existing before the sale and not removed thereby. The tax is based upon the net consideration where it is definite in amount, or may be definitely determined . . . .
In determining the amount of the next consideration for, or net value of, the realty conveyed, only the amount of the liens and encumbranches on the property existing before the sale

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and not removed thereby may be deducted. Thus, for example, taxes or assessments which are liens on the property before the sale and are not paid at the time of sale are deductible. No deduction shalf be made on account of any lien or encumbrance placed upon the property in connection with the sale, or by reason of deferred payments of the purchase price whether represented by notes or otherwise." (Emphasis Supplied) See Example (2) C.C.H., Excise Tax Reporter, ~ 3319.02, p. 2116. See also the Special Ruling of the Commissioner dated July 22, 1932 (C.C.H. ~ 3319.31, p. 2119). This Regulation (in its previous form as Article 77 of Treasury Regulations 71 (1932 Edition) was approved by the Court in Railroad Fed. Sav. & L. Assn. v. United States, 135 F. 2d 290 n. 1, 153 A.L.R. 581 (2nd Cir. 1953).
It appears then that in your situation the promissory note for $13,000 was given in connection with the sale in question, and represents deferred payments of a portion of the purchase price. Accordingly, the $13,000 represented by the promissory note is subject to the transfer tax.

OPINION 68-204

May 15, 1968

This is in reply to your letter of recent date, wherein you inquire whether the State Highway Department has authority to issue overheight permits to vehicles using the public roads of this State on an annual basis.
The recent session of the Georgia General Assembly amended the Act governing and regulating the load and size of motor vehicles using the public highways of this State. (Ga. Laws 1968, Vol. I, pp. 30, et seq.) In this Act, as amended, Section 1 (a) provides:

"(a) . . . . . ; no vehicle unladen or with load shall exceed a height of thirteen (13) feet, six (6) inches; . . . . . single trip movements for necessary purposes of materials, objects or vehicles of dimensions which exceed the limits herein provided and which are of such nature that they cannot be readily dismantled or separated may be permitted but only upon the issuance of a special permit for such purpose, for

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a fee determined by the scale in Subsection (d); . . . . . " (Emphasis added)
The only references in Subsection (d) of this Act pertaining to overheight vehicles are as follows:
"(d) Charges for the issuance of special permits shall be made as follows:
"(3) Heavy equipment (single trip permits only):
"(a) Over on only one of the following limitations, weight, length, height, width . . . . . . $2.50". (Emphasis added)
Section) (d) (4) provides as follows:
"(4) Twelve (12) month permit on heavy equipment:
"(a) Overweight . . . . . . . . $50.00 (b) Overlength . . . . . . . . $25.00 (c) Overwidth. . . . . . . . . $25.00".
Thus, there is no reference whatsoever to "overheight" in the above Subsection.
The problem presented is one of statutory construction. The cardinal cannon of construction of a legislative Act is to determine the General Assembly's intention. Undercofler, Commissioner v. Capital Automobile Company, lll Ga. App. 709 (1965). "The intention of the Legislature as it manifestly appears in a statute must be carried into effect".
What then was the legislative intent in the above cited Act as pertains to your question? This Act evinces a clear legislative intent that any vehicle which exceeds a height of thirteen (13) feet, six (6) inches may be issued a permit in excess of this height, but for single trip movements only.
In using the words "single trip permits only", it seems clear that the Legislature intended to limit authority to the Highway Department to issue permits for overheight vehicles to a single trip basis. There is no reason to believe the Legislature intended to provide the Highway Department with authority to issue overheight permits on an annual or any other basis other than for single trips. To construe the meaning of this Act otherwise would be emasculating the intent of the Legislature. Where legislative Act is plain, unambiguous and positive and not capable of two constructions, the Act must be taken to mean what it says and

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judicial interpretation is forbidden. rulton County Employees Pension Board, eta!. v. Askea, 95 Ga. App. 77 (1957).
Therefore, to clearly answer your question, in my opinion there is no provision in this law or in any other that I can find which would permit the State Highway Department to issue overheight permits to vehicles other than for single trip movements.

OPINION 68-205

May 15, 1968

The Small Business Administration has recently adopted a program of guaranteeing leases of commercial or industrial real estate made by qualifying businesses so as to protect the landlord against any default in rental payments by the tenant. These leases are guaranteed by a private insurance company which then reinsures this business with the Small Business Administration. An insurance company has applied for a license to conduct such an insurance business in Georgia and you have requested my opinion as to whether or not the Small Business Administration is a qualified reinsurer under the Georgia law.

The Georgia Insurance Code provides:
"(l) Any insurer shall reinsure its risks, or any part thereof, only in solvent insurers having surplus to policyholders or trusteed funds on deposit in the United States for the benefit of their policyholders not less in amount than the paid-in capital required under this Title of a domestic stock insurer authorized to transact like kinds of insurance." Ga. Code Ann. 56-413 (1 ).
An "insurer" under Georgia law is every person engaged as indemnitor, surety or contractor who issues contracts of insurance. Ga. Code Ann. 56-103. "Person" as defined by the Code includes, among many other things, any legal entity. Ga. Code Ann. 56-104. After a review of the Small Business Investment Act of 1958, as amended, it is my opinion that the Small Business Administration would be a legal entity under the Georgia Insurance Code.

The Housing and Urban Development Act of 1965 is the enabling legislation for the SBA's lease guarantee program and section 403 of that Act provides for a revolving fund not to exceed $5,000,000 as initial capital for implementing the program. This

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money is available for the payment of any claims arising under the program. P.L. 89-117, Title III, 316(a), August 10, 1965, 79 Stat. 484. The Act further provides that this initial capital may be returned from whence it came when, in the discretion of the SBA, the lease guarantee fund is sufficiently high to permit such return without danger to the solvency of the program. Id.
It is my opinion that so long as this lease guarantee fund does not drop below the level of paid-in capital required under the Georgia Insurance Code of a domestic stock insurer authorized to transact like kinds of insurance, the fund meets the surplus requirements of the Insurance Code for a reinsurer. If for some unknown reason, the fund .available for the payment of claims drops below this amount, then it would not meet these requirements.
With the above qualification in mind, it is my opinion that the Small Business Administration can qualify as a solvent insurer for the purpose of reinsurance under Ga. Code Ann. 56-413(1).

OPINION 68-206 (Unofficial)

May 17, 1968

This is in reply to your request for an unofficial opinion relating to automobile accidents which occur on private property. Your request states that you operate a store outside of the territorial limits of a municipality, that there is a parking area surrounding the store building, that one of your customers backed his automobile into the automobile of another customer on your private parking lot, that the county sheriff was notified, and that the sheriff stated that neither he nor a State Trooper could investigate the accident because it had occurred on private property. You have asked specifically whether or not this accident could have been investigated by any law enforcement officer.

Ga. Code Ann. 68-1623 provides: "The driver of a vehicle involved in an accident resulting in injury or death of any person or property damage to an apparent extent of $25.00 or more shall immediately by the quickest means of communication give notice of such accident to the local police department if such accident occurs within a municipality; if such accident occurs without a municipality, such notice shall be given to the office of the county sheriff or to the nearest office of the State Patrol. The

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above notices shall be in addition to the written report required by section 92A-604." The provisions of Ga. Code Ann. 68-1623 are applicable to accidents occurring "upon highways and elsewhere throughout the State". Ga. Code Ann. 68-160 I(2).
In addition to the reporting requirements set out above, the operator of a motor vehicle which is in any manner involved in an accident within this State in which any person is killed or injured or in which damage to the property of any one person is sustained in an amount of $100.00 or more shall report the accident to the Director of Public Safety. The Director of Public Safety is authorized to request a written report from any officer who may have investigated the accident. Ga. Code Ann. 92A604.
The General Assembly has declared that the primary duty of the Uniform Division of the Department of Public Safety is "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." Ga. Code Ann. 92A-239.
The duties of county sheriffs are set forth generally in Ga. Code Ann. Ch. 24-28. The requirements of Ga. Code Ann. Ch. 24-28 are, however, not exhaustive. For example, sheriffs are required to report traffic fatalities to the Department of Public Safety pursuant to Ga. Code Ann. 68-1624. I am aware of no specific statutory mandate which would require a county sheriff to investigate an accident occurring on private property under the circumstances specified in your request. Although sheriffs have varied and diverse duties, it would be well to remember that it is the general duty of sheriffs to maintain the public peace, to investigate crimes, and to arrest persons suspected of committing crimes. It is not the function of sheriffs or officers of the Department of Public Safety to act as, or to attempt to act as, arbiters of civil liability in automobile accident cases. Your request does not contain facts which would patently indicate that the automobile accident involved the commission of a crime. Based upon the facts set forth in your request, it appears that there was not a positive statutory duty on the part of any law enforcement officer to come to the scene of this accident and to conduct an investigation thereof.

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OPINION 68-207 (Unofficial)

May 17, 1968

You requested an unofficial opinion as to the scope and area of coverage intended by Ga. Code Ann. 99-203 (s) and (x).

Your particular inquiry concerns the application of the abovecited statute to The Thomasville Christian Schools, Inc., in the operation of their kindergarten program for children between the ages of three (3) and five (5) years.

In your letter, you stated that The Thomasville Christian Schools, Inc., operates a full-time private school and as a part of said school, conducts a kindergarten program for children between the ages of three (3) and five (5).

You further stated that the Department of Family and Children Services has notified the school that its kindergarten must be operated and licensed as a "day-care center" pursuant to the rules and regulations of the Department of Family and Children Services.

Your attention is called to Ga. Code Ann. 99-214(a) wherein it is provided, in part, that:

All child welfare agencies, as defined in section 99-203, subparagraph (r), shall be licensed annually by the Division for Children and Youth in accordance with procedures, standards, rules and regulations to be established by the board. The board shall develop and publish standards for licensing of child welfare agencies . . . .

In Ga. Code Ann. 99-203(r) provision is made that:

'Child welfare agency,' as used in section 99-214 of this Chapter, shall mean: 'child-caring institution, 'child-placing agency,' 'maternity home,' 'family boarding home,' 'family day-care home,' and 'day-care center.'

It is furthermore provided in subsection (s) of the abovereferred to section that:

'Child-caring institution' shall mean and include any institution, society, agency, or facility, whether incorporated or not, which either primarily or incidentally provides fulltime care for children under 17 years of age outside of their

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own homes, subject to exceptions as may be provided in rules and regulations of the board.
Finally, by subparagraph (x) of the same section, the following is provided:
'Day-care center' shall mean any place operated by a person, society, agency, corporation or institution, or any group wherein are received for pay seven or more children under 18 years of age for group care, without transfer of custody, for less than 24 hours per day.
In construing a statute, the cardinal rule is to look diligently for the intention of the General Assembly in passing the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102(9).
Additionally, statutory construction is not permissible when a statute is clear and unambiguous in its terms. New Amsterdam v. McFarley, 191 Ga. 334, 337 (1940).
Therefore, it is my unofficial opinion that Ga. Code Ann. 99203 (x) which defines "day-care centers" includes The Thomasville Christian Schools, Inc. since said school operates a place ". . . wherein (there) are received for pay seven or more children under 18 years of age for group care, without transfer of custody, for less than 24 hours per day."
Assuming that The Thomasville Christian Schools, Inc. receives compensation for the operation of its school for children between the ages of 3 and 5 years and that the school has seven or more children in it, the above-referred to statute is clear and unambiguous in its coverage of The Thomasville Christian Schools, Inc.
In Ga. Code Ann. 99-202, it is provided, in part, that:
The purpose of this Chapter is to promote, safeguard and protect the well-being and general welfare of children and youth of the State through a comprehensive and coordinated program of public child welfare and youth services, providing for: social services and facilities for children and youth who require care, control, protection, treatment or rehabilitation, and for their parents; setting of standards for social services and facilities for children and youth; cooperation with public and voluntary agencies, organizations, and citizen groups in

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the development and coordination of programs and activities in behalf of children and youth; . . . .
Therefore, it is abundantly clear that the General Assembly intended for facilities such as those operated by The Thomasville Christian Schools, Inc. to be subject to the rules and regulations adopted pursuant to the authority vested in the Division of Children and Youth of the Department of Family and Children Services in order that said facility would meet the standards established for the protection of the well-being and general welfare of children and youth of Georgia.
You will note that according to Ga. Code Ann. 99-221 those organizations incorporated under the provisions of Ga. Laws 1894, p. 80, as amended, are not to have their rights, powers or privileges impaired or diminished by Ga. Code Ann. Chapter 992. Since the organizations incorporated under this former Ia w primarily concerned institutions for orphans, I am assuming that The Thomasville Christian Schools, Inc. was not incorporated under that act and thus not affected by the reservation of power.

OPINION 68-208

May 17, 1968

You have requested my official opinion as to the construction of Senate Bill 259 passed in the 1968 session of the General Assembly of Georgia. The questions you have posed are as follows:

"I. What are the legal periods that have been established as periods of conflict in which the President or Congress has committed military personnel of the United States?
"2. Would one day of service on active duty, indicated by an honorable discharge, be sufficient requirement for a Georgia Veteran license?

Act No. 569 of Georgia Laws 1966 Session states in Article IV, Section 2A: The expiration date of all current drivers' licenses now held by or hereafter issued to citizens of this State now serving in the Armed Forces of the United States and the expiration date of all drivers' licenses held by or hereafter issued to citizens of this State current at the time such citizen enlists or in inducted into the service of the

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Armed Forces of the United States are hereby extended for the duration of any such service. Provided, that such extended expiration date of any such drivers' licenses shall terminate ninety (90) days after the discharge from the Armed Forces of the United States of any holder thereof.
"3. Is this Section still in effect under the current revised law?
"4. Is there any change in the existing requirements for issuing a Veteran license to the Veteran's spouse?
"5. Does a two week active duty service (such as Summer Camp) constitute a sufficient requirement for a Veteran license?
"6. Would active duty service, regardless of geographic location constitute a sufficient requirement for a Veteran license?
"7. Would the temporary activation of the National Guard in the event of civil disorder constitute the required active duty service for a Veteran license?"
OPINION
I. In answering your first question, research has disclosed no clear cut definition of the periods of conflict when military personnel were committed by the President of the United States.
The American Legion in determining its membership qualification in U.S.C.A. Title 36 44 utilizes the following dates:
"No person shall be a member of this corporation unless he has served in the naval or military services of the United States at some time during any of the following periods: April 6, 1917, to November II, 1918; December 7, 1941, to September 2, 1945; June 25, 1950, to July 27, 1953; August 5, 1964, to the date of cessation of hostilities as determined by the Government of the United States, all dates inclusive, or who, being a citizen of the United States at the time of entry therein, served in the military or naval service of any of the governments associated with the United States during said wars or hostilities...."
The Veterans Administration in its Regulations at 1002 ( 3.2) has set the following dates as periods of war:

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"(A) Indian Wars. January I, 1817, through December 31, 1898, inclusive. Service must have been rendered with the United States military forces against Indian tribes or nations.
"(B) Spanish-American War. April 21, 1898, through July 4, 1902, inclusive. If the veteran served with the United States military forces engaged in hostilities in the Moro Province, the ending date is July 15, 1903. The Philippine Insurrection and Boxer Rebellion are included.
"(C) World War I. April 6, 1917, through November 11, 1918, inclusive. If the veteran served with the United States military forces in Russia, the ending date is April I, 1920. Service after November II, 1918, and before July 2, 1921, is considered World War I service if the veteran served in the active military, naval, or air service after April 5, 1917, and before November 12, 1918.
'(D) World War II. December 7, 1941, through December 31, 1946, inclusive. If the veteran was in service on December 31, 1946, continuous service before July 26, 1947, is considered World War II service.
"(E) Korean Conflict. June 27, 1950, through January 31, 1955, inclusive.
"(F) Vietnam Era. August 5, 1964, through such date as shall be prescribed by Presidential proclamation or concurrent resolution of the Congress. (PL 90-77)."
The previous definitions have dealt only with periods of war and have generally been limited to those periods in which Congress has recognized the existence of armed conflict. However, Senate Bill 259 also recognizes those periods in which the President has committed military personnel to "any conflict". After consultation with the Georgia Department of Veterans Service, the following are periods other than those previously mentioned in which the President has committed troops:
a. Lebanon, July 1, 1958, through November I, 1958. b. Berlin, August 14, 1961, through June I, 1963. c. Vietnam, July 1, 1958, through August 4, 1964. (On August 5, 1964, Congress passed Public Law 90-77 also known as the Tonkin Resolution.)

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Therefore, in answering your first question, all Veterans who were on active duty, as hereinafter defined, during the following periods would qualify for the honorary driver's license under Senate Bill 259:
a. Spanish American War, April 12, 1898, through July 4, 1902, including Veterans of the United States military forces serving in the Moro Province, Philippine Insurrection and Boxer Rebellion. b. World War I, April6, 1917, through November 11, 1918. c. World War II, December 7, 1941, through December 31, 1946. d. Korean Conflict, June 27, 1950, through January 31, 1955. e. Vietnam Era, August 5, 1964, through such date as shall be prescribed by Presidential proclamation or concurrent resolution of the Congress.
Those Veterans of the following conflicts in which the President committed United States military personnel and in which they actually participated would qualify:
a. Lebanon, July I, 1958, through November 1, 1958. b. Berlin, August 14, 1961, through June 1, 1963. c. Vietnam, July 1, 1958, through August 4, 1964. d. Any future conflict in which the President introduces United States military personnel. This would include federalized National Guard troops and mobilized reservists, as well as regular military personnel, both overseas and at home.
2. Before answering your second question as to whether one day of service on active duty would be sufficient to qualify for an honorary driver's license, it will be necessary to give definition to the term "active duty." Neither Senate Bill 259 nor Ga. Code Ann. Title 92A defines the term "active duty." Title 38 101 (21 )-(24) defines the term "active duty" as it applies to Veterans' benefits under Federal programs. For the purposes of Senate Bill 259, since it deals with United States military personnel, the definition would appear to be also applicable to the State statute. That portion of the U.S.C.A. dealing with "active duty" is as follows:
"(21) The term 'active duty' means-

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"(A) full-time duty in the Armed Forces, other than active duty for training;
"(B) full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service (i) on or after July 29, 1945, of (ii) before that date under circumstances affording entitlement to 'full military benefits' or (iii) at any time, for the purposes of chapter 13 of this title;
"(C) full-time duty as a commissioned officer of the Coast and Geodetic Survey (i) on or after July 29, 1945, or (ii) before that date (a) while on transfer to one of the Armed Forces, or (b) while, in time of war or national emergency declared by the President, assigned to duty on a project for one of the Armed Forces in an area determined by the Secretary of Defense to be of immediate military hazard or (c) in the Philippine Islands on December 7, 1941, and continuously in such islands thereafter, or (iii) at any time, for the purposes of chapter 13 of this title;
"(D) service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy; and
"(E) authorized travel to or from such duty or service.
"(22) The term 'active duty for training' means-
"(A) full-time duty in the Armed Forces performed by Reserves for training purposes;
"(B) full-time duty for training purposes performed as a commissioned officer of the Reserve Corps of the Public Health Service (i) on or after July 29, 1945, or (ii) before that date under circumstances affording entitlement to 'full military benefits', or (iii) at any time, for the purposes of chapter 13 of this title;
"(C) in the case of members of the National Guard or Air National Guard of any State, full-time duty under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law; and
"(D) authorized travel to or from such duty. The term does not include duty performed as a temporary member of the Coast Guard Reserve.
"(23) The term 'inactive duty training' means-

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"(A) duty (other than full-time duty) prescribed for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by the Secretary concerned under section 30 I of title 37 or any other provision of law; and
"(B) special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.
In the case of a member of the National Guard or Air National Guard of any State, such term means duty (other than full-time duty) under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. Such term does not include (i) work or study performed in connection with correspondence courses, (ii) attendance at an educational institution in an inactive status, or (iii) duty performed as a temporary member of the Coast Guard Reserve.
"(24) The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."
In further definition of the term "active duty", Senate Bill 259 would also apply to National Guard members who were federalized. That is, were placed under Federal military control as opposed to mobilization by the Governor of the State. This bill would also apply to members of the reserve forces who were mobilized or activated into Federal service. As an example, during the funeral of Dr. Martin Luther King, Jr., Governor Maddox mobilized several thousand National Guardsmen who were stationed in the Atlanta area. These men would not be qualified under Senate Bill 259 for the honorary driver's license because they were still only under State control. However, if a crisis had occurred and it was necessary that the President federalize these

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National Guardsmen, the moment they became federalized they would be qualified under the provisions of Senate Bill 259.
Therefore, in answering your second question, if a Veteran served one day on "active duty" under the meaning of U.S.C.A. Title 38 lO 1, he would qualify for the benefits of Senate Bill 259.
3. Since Senate Bill 259 repeals subsection 4 of Ga. Laws 1937, p. 322, as amended, the section referred to is still in effect.
4. Subsection (b) of Senate Bill 259 changes the provisions of Ga. Code Ann. 92A-401(4)(f) in that the previous section applied only to spouses of Veterans of the Vietnam Era and the new subsection applies to the surviving spouses of any Veteran who qualifies under sections I and 2 of this opinion.
5. The two week active duty service, such as Summer Camp, of the reservist or National Guard member would not qualify that person for an honorary license. This duty would be characterized as "active duty for training" [U .S.C.A. Title 38 lO I(22)] as discussed in section 2 of this opinion.
6. Active duty regardless of geographic location would constitute a sufficient requirement for a Veteran's license "as discussed in section 2 of this opinion.
7. Temporary activation of the National Guard in the event of civil disorder would not constitute the required active duty service for an honorary license unless the National Guard unit was federalized. If such occurred, then the members of the unit would be qualified as having served on active duty with the military forces. (See the discussion under section 2 of this opinion.)
CONCLUSION
In rendering this opinion, I have attempted to cover most of the possibilities that would arise under Senate Bill 259. In order for a Veteran to qualify for an honorary driver's license, he would have to fit within the requirements of active duty, other than active duty for training, as prescribed in section 2 of this opinion and would further have to have participated or been on active duty during the war periods or conflicts as discussed in section I of this opinion. Due to the possible far reaching application of Senate Bill 259, it is possible that there are circumstances that may arise in which this opinion will not give a complete answer. If such an incident should occur, I would be pleased to answer that question as it arises.

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OPINION 68-209

May 20, 1968

This is in response to your recent request for an official opinion as to whether the Forest Research Council has legal authority to expend State funds for the purchase of employee unifotms, consisting of a blazer with official crest and matching trousers.
Generally, executive officers, boards, departments and commissions have no power beyond those granted by express constitutional or statutory provision or necessary implication. 81 C.J.S. States 58.

Many State agencies, such as the Game and Fish Commission (Ga. Code Ann. 45-113) and the Department of Public Safety (Ga. Code Ann. 92A-226), have express statutory authority to purchase uniforms for certain of their employees, whereas others, in particular the Forestry Commission (Op. Atty Gen. 1963June 14, 1965, p. 398), have been held to have this power by implication.

The Forest Research Council has no express constitutional or statutory authority to purchase uniforms for its employees. Moreover, I do not think such power can be implied. The main duties of the Council consist of promoting and coordinating all forestry research in the State. Ga. Code Ann. 43-809.

It is not a regulatory agency for which prompt identification by the public is essential. Nor are these uniforms necessary or intended for use as protective clothing. This is readily apparent from the blazer motif which has been chosen.
While I agree with the statement expressed in your request that these uniforms would "add dignity and professionalism" to your agency. I am sure they would do the same for any State agency. However, I am forced to conclude that such an expenditure would be unauthorized.

OPINION 68-210 (Unofficial)

May 21, 1968

With your letter, you enclosed two Acts of the Legislature adopted at the 1968 Session which Acts, being construed together, abolish the Charter of the village of East Thomaston and annexes

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that area as part of the City of Thomaston, and your question in relation to these Acts is whether any adjustments in State aid to the City of Thomaston will be forthcoming.
Briefly, there are now two laws which provide for grants to the municipalities of this State. The original law is found in Ga. Laws 1965, p. 458, as amended by Ga. Laws 1966, p. 249, and Ga. Laws 1967, p. 882. This law originally provided for grants to municipalities for construction and maintenance of a system of public roads, streets, sidewalks, bridges and appurtenances and to provide traffic control devices and equipment. This law was amended at the 1967 Session of the Legislature so that the funds granted thereunder could be used for purchasing, constructing, improving, maintaining and repairing capital outlay items. The grant of funds under the provisions of this law shall be referred to as Case Number l.
In 1967, the Legislature adopted a new law providing for grants to municipalities which is found in Ga. Laws 1967, p. 889. The grant of funds under this law shall be referred to as Case Number 2. .
The law for grants under Case Number l provides in Section 3 as follows:
"Section 3. 'Incorporated Municipality' as used in this Act shall mean an incorporated municipality, whose population shall be based on the current United States decennial Census, the governing body of which has held at least six regular meetings within the twelve months preceding the execution of the certificate required by section 4 hereof, and which has levied taxes or levied fees of any type for the operation of the government of the municipality or which has received a franchise tax from any utility, firm or corporation within the twelve months preceding the execution of the certificate required by section 4 hereof."
The law for grants under Case Number 2 provides in Section 3 as follows:
"Section 3. 'Incorporated Municipality' as used in this Act shall mean an incorporated municipality, whose population shall be based on the current United States decennial census of 1960 or any future such census, the governing body of which has held at least six (6) regular meetings within the

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twelve months preceding the execution of the certificate required by section 4 hereof, and which for a period of one year, has levied and collected an ad valorem tax on the real property in said municipality or shall have for said one year period, performed at least two of the following municipal activities and services: (1) furnished water service, (2) furnished sewerage service, (3) furnished garbage collection, (4) furnished police protection, (5) furnished fire protection, (6) assessed and collected business licenses, (7) municipal street lighting facilities."
By an Official Opinion to the Treasurer of the State of Georgia, dated October 3, 1967, the Attorney General ruled in construing the law for grants under Case Number I that an incorporated municipality which became incorporated subsequent to the 1960 decennial census was not qualified to. participate in such grants. The basis of that Opinion dealt with an interpretation of the definition for "incorporated municipality" found in Section 3 of the law which is quoted above. A copy of that Opinion is enclosed and forwarded for your information and benefit.
Since Section 3 of the Case Number 2 law is so similar in its language to Section 3 of the Case Number I law in its reference to "the current United States decennial census", it would be my interpretation that the conclusion of the official opinion herein enclosed is equally applicable to annexations by a municipality. That is to say that reference in these two laws to "the current United States decennial census" is a reference to the population of an otherwise qualifying incorporated municipality based on the population of that municipality as it existed at the last decennial census in 1960. Hence, annexation by a municipality would not effect or change the basis of the grants to that municipality under Case Number I or Case Number 2 until the next decennial census in 1970. For that reason, it would be my interpretation that the annexation recently effectuated by the City of Thomaston would not in any way effect the grants provided by law for that city.
One other factor of your inquiry must be considered. This is the fact that the village of East Thomaston was abolished by the Legislature at the 1968 Session. Whether the village of East

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Thomaston may have qualified previously for grants under Case Number I and Case Number 2 I find to be insignificant. This is for the reason that by abolishing the village of East Thomaston, the Legislature demonstrated a clear intent to abolish all of its legal significance and likewise abolish its significance as a qualifying municipality for State-aid grants. Hence, the fact that the area formerly consisting of East Thomaston is now annexed to the City of Thomaston does not warrant a different conclusion than that previously reached.

OPINION 68-211

May 21, 1968

This is in response to your recent request for an opinion on the following:

1. Can a municipality extend its boundaries by annexing a State park without specific legislative approval?
2. Is it advisable for a State park to be within the incorporated limits of a municipality?
In answer to your first question Section 2 of "The Municipal Home Rule Act of 1965" (Ga. Laws 1965, pp. 298, 299; Ga. Code Ann. 69-1016) provides that no municipal boundaries shall be changed "except by local act of the General Assembly or by such methods as may be provided by general law."
The provisions of general law governing this subject are found in Ga. Code Ann. Ch. 69-9, which contains two cumulative methods for annexing territory to incorporated municipalities. Absent additional legislative approval, however, neither of these procedures is of practical value in annexing a State park.
Ga. Code Ann. 69-902 provides a means whereby a municipality can annex property "upon the written and signed applications of all of the owners of all of the land proposed to be annexed." (Emphasis added.) As an alternative method, Ga. Code Ann. 69-904 authorizes 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."

State property may be included in territory annexed to a

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municipality. 62 C.J.S. Municipal Corporations 46. Nothing in either of the above cited sections would preclude such annexation. However, if the municipality chose to use Ga. Code Ann. 69902, requiring consent of all the land owners, who would be authbrized to consent on behalf of the State? I am of the opinion that such consent would have to come from the General Assembly.
Alternatively, if the municipality chose to proceed under Ga. Code Ann. 69-904, requiring concurrence by 60 percent of the resident electors and owners of 60 percent of the land area, it would need similar approval unless the State park constituted no more than 40 percent of the acreage to be annexed.
Accordingly, I am of the opinion that, except as noted above, a municipality must have specific legislative approval to annex a State park. It is my recommendation that, if this matter is pursued further, such approval be sought by local act amending the corporate charter of the municipality in question, rather than by amendment to the general laws.
Resp<_mding to your second question, I am of the opinion that the "advisability" of such incorporation requires an administrative, rather than a legal, decision. From a purely legal standpoint, it is difficult to see how the State could be harmed by such annexation. When State property is within municipal boundaries, the municipality can exercise no control over it which will interfere with the sovereign authority; that is, which will tend to restrain or diminish the State's powers, rights, or interests therein, without the express authority of the State to do so. Mayor and Council of the City of Atlanta v. Central Railroad and Banking Co., 53 Ga. 120 (1874). Moreover, it would seem that the State might benefit through annexation by taking advantage of the many municipal services which it does not now enjoy.

OPINION 68-212

May 22, 1968

You ask my opinion on the following question:

"Because of the recently enacted federal forced housing law (Public Law No. 90-284), it appears desirable that the Georgia Real Estate Commission obtain an opinion from

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your office in regards to its effect and application on the real estate profession in the state of Georgia."
Your question has reference to the Civil Rights Act of 1968, Title VIII-Fair Housing. Further, the opinion you seek from me is concerned with whether the Georgia Real Estate Commission is charged with the duty to become involved in the administration, implementation, and enforcement of said Act.
Section 808 of said Act provides, at subsection (a), that
"The authority and responsibility for administering this act shall be in the secretary of Housing and Urban Development."
With reference to enforcement, Section 810 of the Act provides for a procedure whereby a person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur may file a complaint with the Secretary of Housing and Urban Development who shall investigate the complaint and attempt to resolve it by conciliation. Section 812 of the Act provides that the provisions of said Act may be enforced by private persons by civil action in a United States District Court. Section 8 13 of the Act provides for enforcement by the Attorney General [of the United States] in the case of persons engaging in a pattern or practice of resistance to the enjoyment of the rights granted by the Act.
It appears that the Act does not preempt the right of a State to enact similar legislation. Section 815 of the Act provides that nothing in said Act shall be construed to invalidate or limit any law of a State or political subdivision of a State which grants, guarantees or protects the same rights as are granted by the Act. Further, said section provides that any law of a State or political subdivision thereof which purports to require or permit any action which would amount to a discriminatory housing practice shall to that extent be invalid.
It is apparent from the foregoing that the Georgia Real Estate Commission is not directly involved with the implementation, administration or enforcement of the Fair Housing Section of the Civil Rights Act of 1968. Congress has provided for such implementation, administration and enforcement. Further, since

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Georgia does not have a Fair Housing law, it appears that the provisions of the Federal Act will be singularly effective in this State.

OPINION 68--213 (Unofficial)

May 23, 1968

This is reply to your recent request for my unofficial opinion on the two following questions:
I. What is the method for distribution and disbursement of fines levied by the Court of Ordinary against commercial truckers for violations of the State's weight and measure laws? Specifically, you requested this office to provide you with a schedule setting out the portion of the fees to which the ordinaries are entitled and the portion of the fine to which the Highway Department is entitled and the amount to which the County of Telfair would be entitled.
2. When the Court of Ordinary tries traffic violations based on summons issued by the State Patrol and these summons contain more than one offense and if the ordinary treats each charge as a separate case nolle prossing all charges except one and entering the same on the docket as separate cases, can the ordinary charge a fee for each charge nolle prossed as well as the charge which was tried and a fine imposed?
It is my unofficial opinion that:
1. One half of all money arising from the fines and forfeitures imposed or arising out of violations of Ga. Code Ann. 68-405 shall be remitted by the clerk of the court in which a disposition of the case was made to the treasurer of the State Highway Department of Georgia and the other half of such monies shall be paid by the clerk into the fine and forfeiture fund of the county treasurer in the same manner and shall be subject to the same rules of distribtuion as other fines and forfeitures.
2. An ordinary who tries cases arising out of the violations of Ga. Code Ann. Chs. 92A-l through 92A-5 and all other traffic laws of the State shall be allowed the fee provided for

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by Ga. Code Ann. 92A-505 when said ordinary enters a case on the docket pursuant to his duties as set forth in Ga. Code Ann. 92A-506.
First of all, in regard to your question concerning the distribution of fines imposed by virtue of arrests and charges made by the State Highway Department for violations of the weight and measure laws of Georgia, it is my unofficial opinion that the formula for such distribution is specifically set forth in the Code provisions under Ga. Code Ann. 68-9921 which state in part:
"Any person violating section 68-405, which provides limitations as to the size and weight of loads of vehicles, or operating any motor vehicle on the public roads or highways of this State having a greater length than authorized by such section or with a gross weight in excess of that permitted by such section, shall be guilty of a misdemeanor and, on conviction, shall be punished as provided by law: . . . Onehalf of all money arising from such fines and forfeitures shall be remitted by the clerk of the court in which said case is disposed of to the treasurer of the State Highway Department of Georgia, who shall convey same into the general fund of the State treasury, and the other half of such money shall be paid by said clerk into the fine and forfeiture fund of the county treasury in the same manner and subject to the same rules of distribution as other fines and forfeitures ...."
As to the rules of distribution of fines and forfeitures contained in the fine and forfeiture fund of the county treasury the provisions of Ga. Code Ann. 27-2903, 27-2908 and 27-2909 are applicable. Ga. Code Ann. 27-2903 provides:
"All moneys arising from such fines and forfeitures shall be, at each term of the court, distributed by the solicitor, under order of the court, to such persons and according to the priorities now prescribed by law; and on his failure to do so, he shall be subject to a rule at the instance of any party aggrieved."
Ga. Code Ann. 27-2908 provides:
"Nothing in the preceding section shall affect the distribution of funds arising from fines and forfeitures, or the

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compensation of county treasurers, as regulated by any local law."
Ga. Code Ann. 27-2909 provides:
"The foregoing sections do not apply to a city court; nor do they authorize a judge to draw his warrant to pay insolvent costs, or costs where the defendant has been acquitted, or any other fund in the county treasury than the fund arising from fines and forefeitures, nor do they affect any local law."
Also, in relation to the fines and forfeitures fund it should be noted that in recent years there has been legislation which specifically deals with the distribution of such funds in certain counties falling within a certain population. [This legislation should be noted in case your county falls within one of these counties described therein.] See Ga. Laws 1946, p. 226 for counties having a population of not less than 9,654 and not more than 9,660; Ga. Laws 1947, p. 9 for counties having a population of not less than 9,827 and not more than 9,832; Ga. Laws 1947, p. 206 for counties having a population of not less than 11,300 and not more than 11,321; Ga. Laws 1951, p. 96, as amended by Ga. Laws 1957, p. 468, for counties with the 6,700 through 6,740 population bracket according to the 1950 census; Ga. Laws 1957, p. 500 for all counties within the 12,150 to 12,200 population bracket according to the census of 1950. Also see particularly the legislation dealing specifically with fines derived from traffic cases in the Court of Ordinary which are provided for in Ga. Laws 1953, p. 2,163 for all counties in the 7,500 to 7,600 bracket according to the census of 1950; Ga. Laws 1957, p. 3,237 for all counties in the 11,900 to 12,125 population bracket according to the 1950 census; and Ga. Laws 1960, p. 2,517 for all counties within the 7,401 to 7,436 population bracket according to the 1950 census.
In relation to your second question, it is my understanding that the facts surrounding this question are as follows: It has been the practice in your county for the State Patrol, in charging a traffic violator with two or more offenses, to write only one ticket. It has been the custom of the ordinary to often nolle prosse as a separate case each violation mentioned on a separate ticket and enter the same on the docket as separate cases after having imposed a fine for only one of the offenses. Pursuant to this disposition the

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ordinary then charges his fee in full for the docketing of both the nolle prossed cases and the case for which a fine was imposed. It is my understanding that your question is whether this practice is legal and whether the ordinary may collect fees on each of the separate offenses named, though only one ticket was written by the State Patrol.
The provisions of Ga. Code Ann. 92A-502 grant jurisdiction to the Court of Ordinary to handle violations of the traffic laws of this State in certain instances:
"The Court of Ordinary shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under Chapters 92A -1 through 92A-5 and other traffic laws of the State, in all counties of this State in which there is no city or county court, provided the defendant waives jury trial. . . ."
The provisions of Ga. Code Ann. 92A-506 set forth the duties of the ordinary in disposing of such cases:
"An indictment or accusation shall not be required against the defendant under this chapter, but a summons specifically setting out the charge shall be issued and the court shall keep a docket on which shall be plainly kept the name and address of the defendant, the nature of the offense in brief, the date when brought before the court, and the final disposition of the case with the date thereof. Such docket shall be the same in each Court of Ordinary handling these cases, and on a form to be prescribed' by the Department of Law of the State, and such docket shall be paid from the treasury of the county in which such court shall be located; . . . ."
The provisions of Ga. Code Ann. 92A-505 provide the costs which the Court of Ordinary can charge for docketing these cases:
'The following schedule of costs shall apply in any case disposed of under this chapter:
. . . Entering Case on Docket, Receiving Plea or Holding Trial and imposing Sentence, for Entire Service ... $3.00
"
Your attention is directed to two important points as set forth in the provisions of Ga. Code Ann. 92A-506, supra. First, it should be noted that the legislature has specifically stated that any

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misdemeanor cases arising under Chapters 92A-1 through 92A-5 and all other traffic laws of the State which are tried within the Court of Ordinary are not to be tried based on an indictment or accusation, but all that is required is a summons which specifically sets forth the violation of the State's traffic laws with which the defendant has been charged. Secondly, it should be noted that this Code section specifically provides that the Court of Ordinary shall keep a docket on the nature of the offense and the final disposition of the case.
The appellate courts of our State have used the words "summons" and "subpoena" as synonyms. See Owens v. Maddox, 80 Ga. App. 867 (1950); Mason v. Dean, 10 Ga. 43 (1851); Phillips Co. v. Collier, 87 Ga. 66 (1891); Southern Rwy. Co. v. Dalton Tel. Co., 145 Ga. 189 (1916). The use of a summons ordering a defendant to appear in court is derived from the common law practice ordering defendants to appear in the summary trial of petty offenders. The Supreme Court has held that the use of such summons and the trial of petty offenders without presenting the defendant with a written accusation specifically defining the offense with which he was charged does not violate a defendant's guarantee of due process of law. See Pearson v. Wimbish, 124 Ga. 701, 709-711 (1906). Also, our appellate courts have held that a summons is sufficient in form if when, printed or written, it in substance informs the offender of the charge against him; it is served upon him; and if he is before the court in obedience thereto, then the purpose of the summons has been fully accomplished. See Venable v. City of Atlanta, 7 Ga. App. 190 (1909). In effect the summons serves the same purpose as an accusation or indictment in State court, but there is no requirement that the summons should state the offense with equal strictness as to form or substance. Venable v. City of Atlanta, supra at 191.
Thus, all that is required of a summons issued by the State Patrol is that, in written form, it should specifically inform the defendant of the charges, i.e., violations of law, that have been placed against him. Once the offender appears in the Court of Ordinary on these charges, the ordinary exercises his judicial discretion as to which of these charges are to be nolle prossed and on which offenses a fine will be imposed. Furthermore, if there are several charges or offenses listed in the summons or ticket, then

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under the provisions of Ga. Code Ann. 92A-506 the ordinary must enter in his docket the nature of each offense, the date when this offense was brought before the court and the final disposition of this particular offense. Thus, since the ordinary must make an entry as to the disposition of each charge, he is, therefore, authorized to charge his fee for entering the case on the docket as he is specifically required to do so under the provisions set forth in Ga. Code Ann. 92A-505, supra.

OPINION 68-214 (Unofficial)

May 23, 1968

You ask our opmwn regarding the manner in which the challenges of an elector's qualifications to vote are decided.
"A challenge of a person's qualification to register or to vote shall be decided in every case by the board of registrars with the right of appeal therefrom to the superior court." Ga. Code Ann. 34-628(a) (Emphasis added.). I believe the above-quoted language clearly places the r~sponsibility of deciding challenges of a person's voting qualifications on the board of registrars and does not authorize poll officers to decide challenges. Indeed, Ga. Code Ann. 34-1314(d), 34-1315(g), 34-1316(d), and 341407(d) specify the means by which the votes of challenged electors are to be segregated from unchallenged votes and sent to the board of registrars for decision.
Ga. Code Ann. 34-1407(c) on the other hand, authorizes poll managers to reject certain absentee ballots and is to be distinguished from the provisions of Ga. Code Ann. 34-1407(d) relating to challenged absentee ballots. If a ballot is rejected pursuant to Ga. Code Ann. 34-1407(c) supra, then there is no further decision to be made and the only duty required of the board of registrars is notification to the absentee elector that his ballot has been rejected for the reasons stated by the poll manager.

OPINION 68-215 (Unofficial)

May 24, 1968

In your letter you state that the Tax Commissioner of Hall County accepted a check as payment for a motor vehicle license

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plate. This check was not honored by the bank but was returned to the Tax Commissioner marked insufficient funds. The Commissioner wants to know whether he can remove the license plate from the vehide and hold it until the check is paid or cancel the license plate issued on this bad check.
Ga. Code Ann. 68-213 and 92-6405 deal with the method of payment of motor vehicle license fees. These Code sections allow the State Revenue Commissioner to receive personal checks in payment of motor vehicle license fees under conditions or regulations which he may prescribe. Op. Atty Gen., 1963-June 14, 1965, p. 607. Tax Commissioners have been by law made agents of the State Revenue Commissioner for the purpose of accepting applications for the registration of motor vehicles. Ga. Laws 1955, p. 659, as amended; Ga. Code Ann. 68-244.
The Department of Revenue has by regulation authorized tag agents to accept personal checks for motor vehicle license fees only at the risk of the agent. Rule of Department of Revenue, Section 560-10-3.04. The tag agent is under obligation to forward to the State Revenue Commissioner the sum of money equal to the license fees represented by the license plates he sells. Risk of loss and collection of these license fees is on the tag agent. Op. Atty Gen. 1957, p. 255.
From the foregoing it is clear that under the circumstances given in your letter the motor vehicle license fee has been paid the State. The tag agent has in effect paid the license fee for the applicant. Although the tag agent has a cause of action against the applicant for the amount of the license fee and the possibility of criminal action against the applicant under Ga. Code Ann. 13-9933, in my opinion the Tax Commissioner would not have the authority to seize or cancel the license plate which he issued.

OPINION 68-216

May 24, 1968

A life insurance company licensed in Georgia has filed with you for your approval a Group Agreement form which is to be used in connection with a Group Insurance policy or supplementary agreement form providing accident and health insurance presently on file with the Georgia Insurance Department.
The prosposed form sets forth an agreement between the insurer

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and the employer whereby insurance will be provided for the employees under the existing group policy on the basis that the employer must normally pay any claims arising under the policy out of its own funds. However, if the aggregate amount of benefit payments so made in any policy month reaches a sp.ecified amount, subsequent benefits under the PHm during the remainder of the month will be the obligation of the insurer. Though the Agreement specifies that certain benefits under the Plan be paid from the employer's fund~, the employer may have such payment.s made by its own staff or arrange to have the insurer or someone else make the payments on behalf of the employer from th.e employer's funds.
So that you may be in a position to determine whether the proposed form is one that is approvable under the Georgia Insurance Code, you request my official opinion on whether an employer-policyholder under such an arrangement, to the extent it arranged to have accident and health benefits paid wholly or partly out of the employer's funds to its employees covered under its Plan, is unlawfully engaged in the insurance business. If so, you pose several other questions which I will discuss in this opinion as the need arises.
The Georgia Insurance Code defines insurance as:
"A contract which is an. integral part of a plan for distributing individual losses whereby one undertakes to indemnify another to pay a specified amount of benefits upon determinable contingencies." Ga. Code Ann. 56-102.
Any legal entity, with certain exceptions not here relevant, which issues contracts of insurance is conducting an insurance business and as such is subject to the Georgia Insurance Commissioner. Ga. Code Ann. 56-103,56-104, 56-302(1).
An employee disability benefit plan quite similar to the instant Plan was reviewed by the United States Supreme Court in a case arising out of the Northern District of Georgia, Haynes v. U.S., 353 U.S. 81, 77 S. Ct. 649, 1 L.Ed 2d 671 (1957). Under that plan, conducted by a large public utility operating in Georgia, the employee apparently paid no fixed, periodic premiums for the protection he received. Further, the employer had created no definite fund from which to pay benefits and the amount and duration of the benefits varied with the employee's length of

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service. Each new employee did receive a copy of the plan and a schedule of amounts which would be paid by the employer in the event of disability by accident or sickness. The court held that this was a health insurance plan despite the lack of both a definite fund and payments by the employees and the varying treatment of employees according to length of service. The court reasoned that, as in the Georgia Code, health insurance is an undertaking by one person for reasons satisfactory to him to indemnify another for losses caused by illness or accident. See also Kuhn v. U.S., 258 F.2d 842 (3d Cir., 1958).
Adopting the Supreme Court's decision and applying the Georgia definition of insurance to the Plan in question, it is my opinion that the Plan is insurance since it is an attempt to indemnify another to pay a specified amount of benefits upon determinable contingencies. As the Georgia Court of Appeals has stated:
"The business of insurance consists in accepting a number of risks some of which will involve losses, and of spreading such losses over all the risks so as to enable the insurer to . accept each risk at a slight fraction of the possible liability upon it." Piedmont Life Insurance Co. v. Bell, 109 Ga. App. 251, 260 (1954) quoting with approval from Home Title Insurance Co. v. U.S., 50 F.2d 107, 110 (2d Cir., 1931).
It matters not to the courts, as pointed out by the previouslycited cases, whether the employee makes a direct payment of premium in each case since the courts presume some sort of consideration flowing to the employer for maintaining the Plan. Most courts would cite better personnel relations and greater ease in finding and keeping valuable employees as reasons, among others, for accepting the risk.
Since it is my opinion that such an arrangement is insurance, it follows that such an insurance business would be unlawful unless the employer has complied with the applicable insurance laws of Georgia. Ga. Code Ann. 56-302(1).
You next request my opinion on whether you have the statutory power to disapprove the proposed form. The Georgia Insurance Code requires you to disapprove any form which contains provisions contrary to the public policy of this State. Ga. Code Ann. 56-2411 (5). Since the unlawful conduct of an insurance

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business is contrary to the public policy of Georgia and since your approval of the proposed form might be construed to implicitly allow an employer to conduct such an insurance business, you have the statutory power to disapprove the form.
You next inquire whether an employer having a non-insured medical and hospitalization plan providing accident and health benefits to its employees payable wholly or partly out of the employer's funds would be unlawfully engaged in the insurance business. I see nothing here which would lead me to a conclusion different from the previous Plan and it is my opinion that unless the employer complied with the Georgia insurance laws, he would be unlawfully engaged in the insurance business.
You further wish my opinion on whether the above plan is subject to the Insurance Department's jurisdiction.
The Georgia law provides that no one shall act as an insurer in Georgia except as authorized by a subsisting certificate of authority granted to it by the Insurance Commissioner, except as otherwise provided for in the Insurance Code. Ga. Code Ann. 56-302(1). I am not aware of any provision which exempts the above-described employee disability benefit plans from the jurisdiction of the Insurance Department. In this connection, the law vests in you the authority to institute suits or other legal proceedings as may be required for ti-Je enforcement of any provision of the Insurance Code, or to enforce any order made by you pursuant to this Code. Ga. Code Ann. 56-214.
In view of the above; I believe the Plan is subject to your jurisdiction and I stand ready to render whatever assistance I can in this regard.

OPINION 68--217 (Unofficial)

May 27, 1968

This will acknowledge receipt of a carbon copy of your letter in which you refer to this office the question of annexation of Highway U.S. 41 into the corporate limits of Cartersville.
Your specific question concerns a recent case decided by the Supreme Court of the State of Georgia, being City of Adel v. Georgia Power Company, 224 Ga. 232 (1968). Under this case, and pursuant to a request by the City Manager for the City of

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Cartersville, your inquiry is what procedure is to be followed for annexation of the right-of-way of U.S. 41 as a part of the City of Cartersville.
I have reviewed the Adel case and find it somewhat confusing. Since the case dealt with the right and authority of the Power Company to service an establishment within the city along the right-of-way of a State-aid road, we must first determine the effect of the holding in this case. The language of the case would seem to imply that in order for there to be any annexation under Ga. Laws 1962, p. 119 (Ga. Code Ann., 69-902, 69-903) where the right-of-way of a State or County road is included, it would be necessary for the owner of the road to sign the petition for annexation. However, it is questionable as to whether the Court intended such a holding in this case.
The question involved in the Adel case was the right of the Power Company to service an establishment along the right-ofway of a State-aid road. The main issue in the case did not involve the question of what property had been annexed into the City of Adel. Further, the Court did not hold that the remaining property which had been purportedly annexed into the City of Adel was not property annexed. Therefore, it is questionable as to whether the Court held that, under such circumstances, there could never be an annexation without the signature of the owner of the road. I am inclined to interpret the Adel case as holding that under such circumstances, the right-of-way for the road is not annexed but the remaining "contiguous" property is annexed.
As to your specific question, I must state that I find no authority for the Director of the State Highway Department or the State Highway Board to sign a petition for annexation of the right-of-way of State-aid roads into the municipalities of this State. There is authority in the provisions of Ga. Laws 1951, pp. 31, 36 (Ga. Code Ann., 95-1610) which would allow the State Highway Board to abandon a State-aid road. However, under the case of Southern Railway Company v. Wages, 203 Ga. 503(4) (1948), where the State Highway Board abandons a State-aid road, such does not foreclose the rights of the counties or the general public to the use of the abandoned right-of-way as a road.
Further, after a road has been a,bandoned, the title to the road and rights of the public will depend upon the status of the property before and after the abandonment. If legal title was

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previously vested in the Highway Department by deed or condemnation, the title will so remain and the property will remain property of the State of Georgia. If no title was previously vested in the State and the road was a part of the State-aid system by virtue of expressed or implied dedication, the county authorities may, if they so desire, take over the right-of-way as a county road. If, however, the county does not take over the road, then the status of the property is to be determined by statutes and general law relating to dedication and easement. (See Ca/fee v. Jones, 54 Ga. App. 481 (1936).
Hence, if the State Highway Department chooses to abandon a State-aid road, and if the right-of-way was acquired by deed or condemnation, the property forming the right-of-way for that road would then be State property and an Act of the General Assembly would be necessary for its conveyance to a municipality of this State. If the State-aid road which is abandoned was originally acquired by dedication, then the county authorities may choose to use the right-of-way as a county road, and if they fail to so do, the property would be controlled by the law of dedication and easement. If the public is still using the road, then of course, the general public has a right to continue use and the road may be closed only by the statutory procedure for closing a county road. If the road is closed by the statutory procedure, or the public ceases to use the road, then of course, the rights of the public or governmental authority reverts to the adjoining property owner.
Therefore, in answer to your specific inquiry, it is my unofficial opinion that neither the State Highway Board nor the Director of the State Highway Department has authority to sign a petition for annexation of the right-of-way of a State-aid road as part of the corporate limits of a municipality of this State.

OPINION 68-218 (Unofficial)

May 27, 1968

You ask whether a Stephens County Commissioner whose three-year term of office expires on December 31, 1969, must run for reelection in 1968.

Ga. Code Ann. 36-802 provides that county officers shall be elected in the November election next preceding the expiration of

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the term of office. "The words 'November election' shall mean the general election held on the Tuesday next following the first Monday in November in each even numbered year." Ga. Code Ann. 34-103(m). Accordingly, I believe that a county commissioner whose three-year term of office expires on December 31, 1969, must run for reelection in November, 1968.

OPINION 68-219 (Unofficial)

May 27, 1968

Responding to your request, I am aware of no law which, because of your present position as justice of the peace, would prevent you from becoming a candidate for the office of ordinary.

Although Ga. Code Ann. 89-103 declares that no person shall hold two county offices, it appears that qualifying as a candidate does not result in placing the candidate in the position of holding an office. Cox v. Peters, 208 Ga. 498 (1951). Moreover, a justice of the peace is not a county but a State officer (Long v. State, 127 Ga. 285, 286 [1906]).

OPINION 68-220 (Unofficial)

May 28, 1968

This is in reply to your letter asking our opinion with regard to the Georgia Election Code as amended by the 1968 General Assembly. Specifically, you have asked whether a person residing in a county of less than 40,000 persons may cast his ballot in the election district containing the county courthouse if he is not registered in the district in which he resides. Additionally, you have asked what action the board of registrars is authorized to take regarding electors who have moved from one election district to another within the county.
Ga. Code Ann_ 34-1310(c) provides that a person desiring to vote at any primary or election must be registered as an elector in the election district in which he resides. The above-described Code section also provides that such an elector must also vote in the election district in which he resides except as provided in Ga. Code Ann. 34-629 and 34-1407 relating to absentee ballots. Ga. Code Ann. 34-629 provides that only these persons whose

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names appear on the list of electors supplied to the poll managers of each election district shall be allowed to cast their ballots in the election district in which they are registered except that in counties having a population of less than 40,000 persons, an elector may be permitted to cast his vote in that election district containing the county courthouse.
Construction of any statute must square with common sense and sound reasoning (Blalock v. State, 166 Ga. 465, 470 (1928)). Furthermore, courts will be guided by the intention of the General Assembly, keeping in mind the old law, the evil and the remedy (Gazan v. Heery, 183 Ga. 30 (1936)). It is quite obvious, I think, that the General Assembly intended that no person could validly cast his ballot in the election district in which he resides unless he is registered in such district (Ga. Code Ann. 34-1310(c) supra). The General Assembly also provided, however, that under certain circumstances, an elector could cast his ballot someplace other than in the election district in which he resides. However, in order to exercise that privilege, it is clear that he must first be registered in the election district in which he resides. Any other construction would have the anomalous result of providing those persons disqualified to vote in their own election district the right to cast ballots elsewhere.
Turning to your second question regarding electors whom you know to have moved to a different election district since registration, I call your attention to Ga. Code Ann. 34-627 which charges the board of registrars with the duty of examining the qualifications of any person whose name is entered on the list of electors. In as much as the law clearly states that an elector be registered in the election district in which he resides, I think it would be proper for the board of registrars to question the qualifications of any elector whom the board believes to be residing outside of the district in which such person is registered. Such challenge should be made in accordance with the procedure described in Ga. Code Ann. 34-627. Moreover, I call your attention to Ga. Code Ann. 34-632 which prescribes the rules for determining residence.

OPINION 68-221 (Unofficial)

May 28, 1968

You ask my opmwn as to whether changing the method of electing county commissioners and school board members from

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district to county wide is an exception to the rule that each candidate for federal, State or county office accompany his notice of candidacy with a nomination petition.
Ga. Code Ann. 34-1001 (c), a copy of which is enclosed for your convenience, provides only five exceptions to the rule that a candidate for county and other offices accompany his notice of candidacy with a nomination petition. The changing of the electoral base of a specific office, whether or not such change results in the creation of a new office, is not one of the exceptions listed and I am accordingly of the opinion that such change is not per sean exception to the rule requiring a nomination petition.

OPINION 68-222

May 28, 1968

This is in response to your request for an opinion with reference to two particular sentences of Ga. Code Ann. 32-2901 (5) which provide that an employee of the Board of Regents of the University System of Georgia who qualifies as a teacher under the terms of either sentence
" . . . shall not be entitled to any prior service credit for service rendered prior to being included in the system."

You state, in essence, that the Trustees have interpreted those provisions to mean that such an employee is not entitled to any credit for service rendered prior to the effective date of the amendment to the Act that enables such employees to become members of the system, which the Trustees have considered to be March 1, 1960.

OPINION

Based upon the rule of liberal construction applicable to Acts creating retirement benefits for governmental employees, a court in all probability would read this restriction of benefits provision more narrowly than have the Trustees, holding that it denies credit for "prior service" as specifically defined in the Act rather than that it denies credit for service performed prior to the effective date of the 1960 amendment (March 17, 1960) or the date any such employee becomes a member of the system.
DISCUSSION

Were it not for the above-quoted language, employees of the Board of Regents who are admitted to membership in the

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Teachers' Retirement System pursuant to the provlSlons of the subject paragraph of Ga. Code Ann. 32-2901(5) would be entitled to all credits available generally to members of the system. The General Assembly must have intended the subject wording to be a restriction upon the rights and benefits available to these employees. The legal question presented is the scope of this restriction.
The critical words are, " . . . shall not be entitled to any prior service credit for service rendered prior to being included in the system." Careful attention should be paid to the fact that the word "credit" does not stand without modification; rather, it is qualified by the words "prior service." In properly interpreting statutes, meaning and effect should be given to all words, when possible. Falligant v. Barrow, 133 Ga. 87, 92 (1909). The Act defines the terms "service" and "prior service" and provides that those definitions shall be utilized unless a different meaning is plainly required by the context. Ga. Code Ann. 32-2901.
"'Service' shall mean service rendered as a teacher and paid for by the State or other employer." Id at (7).
"'Prior service' shall mean service rendered prior to January 1, 1945, for which credit is allowable as provided in Section 32-2904." ld at (8).
Statutes creating retirement benefits for governmental employees are entitled to liberal construction because they advance the legitimate governmental objective of securing and retaining more efficient and desirable employees. City of Macon v. Herrington, 198 Ga. 576, 589 (1944), Burks v. Board of Trustees, 214 Ga. 251, 254 (1958), Griffin v. Bass, 96 Ga. App. 892, 896 (1958). Where, therefore, two constructions of a retirement Act are possible, one which would vest rights and the other which would divest rights of pension claimants, the construction in favor of the claimant is to be preferred.
The General Assembly could have used the words "any credit for service" but chose to utilize the phrase "any prior service credit for service."
Thus, irrespective of the subjective desires of the legislators, the objective intent of the law, as expressed in the words chosen, is that those employees of the Board of Regents who become members of the System pursuant to the subject paragraph of Ga.

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Code Ann. 32-2901 (5) shall not be entitled to credit for "prior service" as defined in Ga. Code Ann. 32-2901 (8) and provided for in Ga. Code Ann. 32-2904. But this restriction of benefits does not preclude such an employee from obtaining, in the manner and under the conditions set forth in the Act governing the System, other credit for service rendered prior to the time he is included as a member of the System.

OPINION 68-223

May28, 1968

This is in answer to your letter of May 22, 1968 in which you refer to the local school trustees which exist in some county school systems and ask for my opinion as to whether a teacher employed in such a school system may legally serve as one of its "trustees."

It is my opinion that your question must be answered in the affirmative. To start with, I am unaware of any statutory restriction upon the right of an individual to simultaneously serve in both capacities. While Ga. Code Ann. 89-103 does prohibit any person from holding more than one county "office" at the same time, it seems quite clear that the positions here involved, however important, do not constitute "offices" in the legal sense. See, e.g., Board of' Education of' Doerun v. Bacon, 22 Ga. App. 72(1) (1918) [holding that the position of teacher was merely an employment and not an office].
In the absence of statute we must turn to common law where we find that there is no inhibition against an individual holding a plurality of employments or offices at the same time unless they are inconsistent with each other (in other words a common law conflict of interest). See e.g., Long v. Rose, 132 Ga. 288, 290 (1909). While it would be quite possible for a court to hold that such a common law conflict of interest exists in the case of a teacher (the employee) simultaneously serving as a member of the county board of education (his employer), the same would not be true where he serves merely as a local school trustee. The distinction lies in the fact that the school trustees provided for under Ga. Code Ann. 32-1104, 32-1105 are in no sense "employers" of teachers. The trustees function solely in an advisory capacity. They can only make recommendations to the actual employer (i.e. the county board of education) which is in turn wholly free to reject as well as accept the "advice."

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OPINION 68-224 (Unofficial)

May 28, 1968

This is in reply to your letter asking my opinion regarding the forthcoming election for Judge of the City Court of Brunswick. Specifically, you have asked whether the County Commissioners may set a qualifying fee for candidates for such office pursuant to Ga. Code Ann. 34-1004 and whether the winning candidate must be elected by a majority of the votes cast pursuant to Ga. Code Ann. 34-1514. I understand that Ga. Laws 1943, p. 702 et seq. creating the City Court of Brunswick is silent as to qualification fees and provides for election by plurality.

At the outset, there is no question that Ga. Code Ann. 341004 authorizes the setting of qualifying fees for candidates for county office. Nor is there any question that Ga. Code Ann. 34-1514 requires that no candidate shall be elected to public office other than that of presidential elector unless he shall have received a majority of the votes cast. The question then, is whether the above-described Code sections are applicable to the City Court of Brunswick and supersede Ga. Laws 1943, p. 702 et seq. creating such court.

The City Court of Brunswich has county-wide jurisdiction and an election to fill a vacancy occuring in the office of judge of said court is expressly open to the voters of Glynn County. Accordingly, I believe such an election would be a county election contemplated by Ga. Code Ann. 34-102 which provides that the Georgia Election Code, Ga. Code Ann. Title 34, shall apply to any election to nominate a candidate for, or to fill any county office and to any county election or primary for any other purpose.

Insofar as the Georgia Election Code and the Act of the General Assembly creating the City Court of Brunswick relate to election of the judge of such court, both enactments are in pari materia and should be construed together. Wingfield v. Kutres, 136 Ga. 345, 349 (1911). Thus, even though the Act of 1943 is silent regarding qualifying fees, authorization to set such fees is given to the governing authority of the county by Ga. Code Ann. 34-1004.

With regard to the question of election by plurality or majority

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vote, however, there seems to be a direct conflict between the provisions of Ga. Laws 1943, p. 702 and Ga. Code Ann. 341514. When such a conflict occurs, courts will usually be guided by the last expression of the General Assembly on the subject. Gilbert v. Georgia Railroad Co., 104 Ga. 412 (1890). Consequently, I believe that the Ga. Code Ann. 34-1514, enacted in 1964, is controlling as the last expression of the General Assembly with regard to election of judge of the City Court of Brunswick.

OPINION 68-225 (Unofficial)

May 28, 1968

You requested my opinion concerning the taxation of bank stock. You asked whether an account which is a reserve for bad debts is to be included as surplus under the provision of Ga. Code Ann. 92-2406. That Code section provides that the shares of banks shall be taxed at their full market value which is fixed by said Code section as the amount resulting from adding together the amount of the capital, surplus and undivided profit accounts of the bank.

83 C.J.S., Surplus, p. 914, provides:

"Surplus is the property of the bank, and is not capital stock, but, like capita! stock, it constitutes the working capital of the bank.
"The primary purpose of a bank surplus is the accumulation of a sum against which bad debts may be charged so that at all times the capital may be kept unimpaired, and is created for the purpose of meeting unforeseen contingencies and unusual losses, and ordinarily a surplus may be used to absorb at least extraordinary losses." (Footnotes omitted.)
It is my opinion that within the meaning of this Code Section a reserve for bad debts accounts is a surplus account and should be included in determining the fair market value of the bank shares.

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OPINION 68-226 (Unofficial)

May 29, 1968

You ask whether the City of Dublin may enter into a contract with an individual, not a tax accessor, for the purpose of furnishing information to the City of Dublin from the tax reevaluation program recently completed by Laurens County.
Your attention is directed to Ga. Laws 1961, p. 435, which Act amended Ga. Code Ann. Ch. 92-40 by providing a new section to be designated as Ga. Code Ann. 92-4003, which reads as follows:

"The municipal board of tax assessors in each municipality may, subject to the approval of the governing authorities of such municipality, enter into contracts with firms, individuals, or corporations for the employment of such persons to assist the said boards in the mapping, platting, cataloging, indexing and appraising of taxable properties in the municipality, other than those assessed by the Georgia Department of Revenue, and to make, subject to the approval of such board of assessors, re-evaluations of taxable property and to search out and appraise unreturned properties in such municipalities, or to purchase such mformation from any county or political subdivision of the State of Georgia. The expense of such employees and said work shall be paid, subject to the contracts, first being approved by the municipal governing authority, out of the municipalities funds as a part of the expenses of the said boards.''
By its title, this Act applies to all municipalities. "This Act, upon its adoption, became an amendment to the charters of all the towns and cities in the State. . . ." Dawson Compress and Storage Company v. City Council of Dawson, eta/., 107 Ga. 358 (1899).
Accordingly, the Dublin Board of Tax Assessors, which was recreated by Ga. Laws 1947, p. 263, as amended by Ga. Laws 1949, p. 1523, possesses the power to enter into the contract, subject to the approval of the governing authorities of the City of Dublin.

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Of course, the information obtained can only assist the Board of Tax Assessors in the performance of its duties, and cannot circumvent or usurp such duties. Tietjen v. Mayor and Aldermen of Savannah, 161 Ga. 125(1) (1925); Cf. Bagwell. Commissioner \'. Cash, 207 Ga. 222 (1950); E::.::ard v. City of Lawrenceville, 207 Ga. 649 (1951 ). Nor can the Board of Tax Assessors rely exclusively on this information in making their determination. Cf. Co/verd v. Rid/er, 218 Ga. 490 (\962), but must use the best information available in their fixing of just and fair valuations of the property assessed. Kighr v. Gilliard, 214 Ga. 445(4) (\958).

OPI:\110~ 68-227

May 29, 1968

In your letter your requested my official opinion relative to whether builders who "pre-treat" the houses which they construct for sale are doing so illegally. As I understand it, said builders are not licensed in structural pest control work by the Georgia Structural Pest Control Commission.
Ga. Code Ann. 84-3409 (Ga. Laws 1955, p. 564, as amended), provides at subsection (c) thereof that:
"This chapter shall not apply to any person doing work on his own property or to any regular employee of any person, firm or corporation doing work on the property of such person, firm or corporation under the direct supervision of the person who owns or has charge of the property on which the work is being done: Provided, however, that nothing herein shall authorize any person to endanger the public health or safety through the use of any chemical or substance."
It is assumed that the question you have posed involves builders who hold title to the property on which they engage in activities which would otherwise require a license from the Structural Pest Control Commission.
Although the legislature may have intended that the abovestated exemption apply only to a person, firm, or corporation which engages in structural pest control work on a structure which is subsequently to be occupied or otherwise utilized by said person, firm, or corporation, it is impossible to infer such an intention when the statute employs no qualifying language to that effect.

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The statute clearly expresses that the licensing requirement shall not apply to "any person ... or to anr regular employee of anr person, firm, or corporation" when the work is done on property owned by such person, firm, or corporation. [emphasis added.] It must be assumed that the legislature would have qualified this language if it had intended the exemption to extend only to certain situations.
Therefore, it is my opinion that the exemption provided for in Ga. Code Ann. 84-3409(c) (Ga. Laws 1955, p. 564, as amended) extends to any situation in which a person, firm, or corporation is doing structural pest control or related work on property owned by such person, firm, or corporation. If the legislature desires to narrow the terms of said exemption so that it will not be operative in cases where the structure is built and treated for the sole purpose of sale, the same can be accomplished very easily by an amendment to Ga. Code Ann. 84-3409(c).
I would point out that subsection (a) of Ga. Code Ann. 843409 (Ga. Laws 1955, p. 564, as amended) makes it unlawful for any person, firm, corporation, association or other organization or combination thereof, to "solicit, supervise, advertise, represent himself to be in, hold himself out as being in, or purport to be, a manager, owner, operator-owner, operator. .. or agent in structural pest control, control of wood-destroying organism, fumigation or related work, without having first secured a license issued for that purpose by the Commission. . . ." Consequently, it could be a violation of the law for a builder who is unlicensed in structural pest control work to hold himself out to a prospective purchaser as being qualified to engage in such work or to make such work part of the consideration for the sale of the structure involved.
Finally, subsection (c) of Ga. Code Ann. 84-3409 (Ga. Laws 1955, p. 564, as amended), limits the exemption of persons, firms, or corporations doing work on property owned by such persons, firms, or corporations by including the requirement that such work must be done "under the direct supervision of the person who owns or has charge of the property on which the work is being done." The exemption would not be operative unless this provision is complied with.

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OPINION 68-228

June 4, 1968

This is in response to your request for my official opinion on the following question:

"May a local system board of education in Georgia legally provide for programs of released time to enable children to attend religious services at locations off the school premises?''

OPINION

If authorized by general policies and regulations of the State Board of Education, local boards of education could release pupils upon the request of their parents to attend religious services or instruction given off the public school premises, provided such program is not directly or indirectly financed in whole or in part from public funds and the students are not coerced to attend such services by the school system or its employees. However, since the State Board of Education has not authorized such released time programs for religious services, a local board of education may not legally conduct such a program.
DISCUSSION

At the moment of this writing, it can be said with some degree of certainty that the Supreme Court of the United States has not disapproved programs under which pupils are released from school upon the request of their parents during regular school hours, while fellow students are compelled to remain in attendance, for the purpose of attending religious services or instruction given off the school premises, provided no public funds are expended in connection with the program and no pupil is coerced by the school system or its employees to attend the religious services or instruction. Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952). Such a program may not be conducted on the school premises. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649, 2 A.L.R. 2d 1338(1948).
It is important to note that three Justices dissented in the Clauson case, they being of the opinion that the State was using its compulsory school attendance laws to channel children into sectarian classes. Such coercion was, to their thinking,

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unconstitutional under the "free exercise" clause ut the First Amendment of the United States Constitution. The trust of the dissents perhaps can be avoided by establishing a policy which forbids the recording of attendance at such religious services. Such a policy would seem appropriate, although the Clauson case has not been formally reversed, because more recent Justices appear to have favored even greater separation between Church and State than the Justices who decided Clauson. See: Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962), Abington Schoof District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).
An additional reason why such a program must be conducted without cost to the local school system is provided by Art. I, Sec. I, Par. XIV of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-114) which forbids the taking of money from any public treasury, directly or indirectly, in aid of any church, sect, denomination or sectarian institution. Bennett v. City of LaGrange, 153 Ga. 428 (1922). In the Clauson case, even the forms on which parents requested released time for religious purposes were paid for by the religious organization. Similar policies would appear to be in order, if such a program is approved by the State Board of Education.
A local board of education would violate its duty to secure the enforcement of the compulsory school attendance laws (Ga. Code Ann. 32-2107) by conducting a program of released time for religious instruction without the proper approval of the State Board of Education. Ga. Code Ann. 32-2106. The present policies and regulations of the State Board of Education do not recognize attendance at religious services or instruction as a lawful excuse pursuant to Ga. Code Ann. 32-2106(b), although children may be excused temporarily from school on special and recognized holidays observed by persons of their faith. IV Rules and Regs. of Ga. 160-10-.01(10)(c) and 160-10-3-.02(3). The proper method for the approval of such a program is for the State Board of Education to promulgate general policies and regulations applicable to all county and independent school system boards of education. Ga. Code Ann. 32-2106(b).

OPINION 68-229 (Unofficial)

June 4, 1968

I have been requested by the Executive Secretary of the Regents

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of the Uuiversity System of Georgia, to advise you as to the position of the Georgia Education Authority (Schools) in connection with the annexation of property owned by the State School Building Authority and more specifically whether the Authority would join in an application for annexation to the City of Augusta.
I have been informed by the Authority that it is their policy not to join in such annexation applications. While I am uncertain as to the reason for such policy, I assume it to be based upon the fact that the school facility in the annexed area, the beneficial interest of which is currently vested in the county school system, would become the property of the city school system. The result would be that the county system would be paying the Authority for a facility utilized by the city system. The Georgia Education Authority (Schools) probably desires to avoid the various complications which migr.. llow from this transfer of beneficial interest in the property used to secure its financing of the school facility.

OPINION 68-230

June 4, 1968

You requested an optnton as to the authority of your Department to receive funds from the Governor's Emergency Fund Appropriation and to disburse same to the Atlanta Children and Youth Service Council. Additionally, you requested an opinion in regard to the responsibility for directing the expenditure of such funds and for the accounting of such expenditures.

According to the information attached to your request letter, the Atlanta Youth Council was established by Resolution of the Board of Aldermen of the City of Atlanta, Georgia, on February 7, 1966, which was approved February 9, 1966. Additionally, you stated in your letter that in 1967, the Board, with the approval of the Mayor, adopted a subsequent resolution changing the name of the Atlanta Youth Council to the Atlanta Children and Youth Service Council.

Furthermore, in your letter you stated that the Atlanta Children and Youth Service Council plans to utilize the funds provided by your Department for programs and services for dependent, neglected and delinquent children and youth in Fulton, DeKalb, Cobb, Clayton, and Gwinnett Counties.

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The ..-:solution authorizing the creation of the A tlanl~ Youth Council, now the Atlanta Children and Youth Service Council, provides in Section I that the Council was established as an agency of the City of Atlanta. Furthermore, in Section 5 provision is made as follows:
The duties and functions of said Atlanta Youth Council (now the Atlanta Children and Youth Service Council) shall be as follows:
(a) To develop a community program designed to prevent and control juvenile delinquency with the help of all public, private and religious agencies now or hereafter working in the field.
(b) To coordinate the activities of public, private and religious agencies devoted in whole or in part to the welfare of youth and the prevention of delinquency.
(c) To implement the prevention program through all of the means available to City Departments and private agencies.
(d) To collect, correlate and disseminate information, statistics and data on the subject of juvenile delinquency, the results of which would be available to all agencies which might benefit from it.
Furthermore, by letter dated May 3, 1968, from the Director, Division for Children and Youth, State Department of Family and Children Services, a copy of a City of Atlanta Ordinance, approved by the Mayor on December 20, 1967, was forwarded to this office for consideration. By Section 4 of said Ordinance, provision is made as follows:
Neither any individual nor any entity coming within the provisions of this ordinance, or the agents, servants or employees of same, shall in any way use any of its funds or properties, whether derived from the City of Atlanta or elsewhere, to pay any compensation of any nature in excess of that as approved by the Finance Committee, and no individual, or member, officer, director or employee of such entity shall accept same.
As I understand the situation, you are requesting an opinion concerning the transfer of a certain sum of money by Governor Lester Maddox from his Emergency Fund Appropriation to the

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Georgia Department of Family and Children Services, Division for Children and Youth. In turn, the Department is to disburse said funds to the Atlanta Children and Youth Service Council to be used by the council. By Letter to an Assistant Attorney General in my office, the Executive Director of the Atlanta Children and Youth Service Council, stated that the Council will use the allocated funds as follows:
1. Bus transportation for youth to recreational and educational activities.
2. Recreational and educational supplies and equipment.
3. Campership for poor youth.
4. Scholarships for summer school for poor youth.
5. Funds to pay youth leaders to work in their community on service and other types of programs helping youth.
6. Funds to pay for poor youth to participate in arts and cultural programs.
7. Funds to make small loans or grants to youth to get to jobs, buy special clothing items for camp, take special courses, etc.
8. Funds to help pay for special events for youth, such as picnics, trips, field days, camping, outings, etc.
9. Funds to help youth establish special youth employment programs to find part-time and summer jobs.
Additionally, he stated that " . . . all the money will be used to help poor children and youth find and take advantage of employment, educational, recreational, and social service opportunities which they need."
Your attention is called to Ga. Code Ann. 40-408 which provides as follows:
To the end that emergency needs of the State agencies not ascertainable at the time of the submission of the budget report to the General Assembly, or at the time of the enactment of the General Appropriations Act be provided for, the General Appropriations Act shall contain a specific sum as an emergency appropriation. The manner of allocation of such emergency appropriation shall be as

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follows: The head of the budget unit desiring an allotment of funds from the appropriation shall present such request to the Governor, in such form and with such explanation as he may require, and the Governor may allow or disallow the request at his discretion. No allotment shall be made from this appropriation to a purpose which creates a continuing obligation for the State.
As stated, the emergency fund is to provide for " .. emergency needs of the State agencies not ascertainable at the time of the submission of the budget report to the General Assembly, or at the time of the enactment of the General Appropriations Act. . . ." Additionally, in order to receive such an appropriation from the Emergency Fund, it is necessary that you, as the Head of the Budgeqng Unit (State Department of Family and Children Services), request such from the Governor upon appropriate forms accompanied by sufficient information as to the emergency needs.
Finally, you will note that the final sentence of the above section provides that "No allotment shall be made from this appropriation to a purpose which creates a continuing obligation for the State." As I understand the utilization of these funds, such will terminate during 1968 and thus will not be a " . . . continuing obligation for the State."
As stated in Ga. Laws 1963, pp. 81, 82 (Ga. Code Ann. 99202), the following purpose is given for the establishment of the Children and Youth Division of your Department:
The purpose of this Chapter is to promote, safeguard and protect the well-being and general welfare of children and youth of the State through a comprehensive and coordinated program of public child welfare and youth services, providing for: social services and facilities for children and youth who require care, control, protection, treatment or rehabilitation, and for their parents; setting of standards for social services and facilities for children and youth; cooperation with public and voluntary agencies, organizations, and citizen groups in the development and coordination of programs and activities in behalf of children and youth; and promotion of community conditions and resources that help parents to discharge their responsibilities for the care, development and well-being of their children. It is the further purpose of this

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Chapter to provide a qualified group of citizens and professional leadership which will identify and study the problems of youth, recommend and effect possible solutions, and work actively for State and local action to prevent children and youth from becoming inmates of our prisons, patients in our mental hospitals, and persons dependent upon public assistance programs.
Therefore, in view of the above-stated purpose, it is my official opinion that the uses intended by the Atlanta Children and Youth Services Council definitely come within said purpose.
In your letter, you also inquired as to the conditions for directing the use of such funds and the accounting procedures concerning same. Your attention is called to Ga. Laws 1963, pp. 81, 116 (Ga. Code Ann. 99-216(a)) wherein the following power is given to the State Board for Chidren and Youth:
The board shall have the power and is hereby authorized:
(a) To enter into contracts with Federal, State, county and municipal governments, and agencies and departments of the same; public and private institutions and agencies of this and other States; and individuals, as may be necessary or desirable in effectuating the purposes of this Chapter.
Therefore, it is my official opinion that the State Board of Children and Youth can by resolution authorize and enter into a contract with the Atlanta Children and Youth Council, since same is a part of the municipal government of the City of Atlanta. This contract should provide that the Council will furnish services to the State Department of Family and Children Services, Division of Children and Youth, which are within the purposes of said Division in return for the funds to be allocated to the Department from the Governor's Emergency Appropriation Fund.
I would suggest that you request that the Council submit to the State Board of Children and Youth an offer to help effectuate the purposes of the Division of Children and Youth as above outlined and offering to enter into a contract, for a certain sum, with said Division through its Board. Then a request should be made to the Governor for funds from his Emergency Fund. If the Governor approves and grants funds from his Emergency Fund, then a contract should be executed by the Council and the State Board of Children and Youth wherein the Council would contract to

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assist in effectuating the purposes of the Division in return for such funds. The contract should provide that the funds would be used for definite items as outlined in the Council's offer. Also, the contract should provide that the Division could review the progress of the Council and that the State Auditor could perform an audit when the program terminates. Of course, the Atlanta Council must follow the provisions of the Ordinance of December 20, 1967, in utilizing such funds.

OPINION 68-231 (Unofficial)

June 5, 1968

This is in reply to your letter of May 28, 1968, asking my interpretation of Ga. Code Ann. 34-10 IO(b) with regard to the number of signatures needed on a nomination petition for a candidate running for office in a newly created district. Additionally, you have asked by phone whether a teacher in the Walker County school system is eligible to run for a seat on the county board of education.

Ga. Code Ann. 34-10 IO(b) provides in relevant part that: "A nomination petition of a candidate shall be signed by a number of electors of not less than five percent of the total number of electors eligible to vote in the last election for filling of the office the candidate is seeking . . . ." As I understand your problem there was no "last election" for the members of the school board because the laws prescribing the method of election of such persons were recently changed pursuant to Ga. Laws 1968 p. 2235 et seq. to provide for division of the county into five equal districts with the electors of each such district electing one member, resident in such district, to the board of education.

The cardinal rule of construction of any statute is to ascertain the true intention of the General Assembly, (Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958)). In determining such intention, the courts shall keep in view the old law, the evil and the remedy (Ga. Code Ann. 102-102(9); Gazan v. Heery, 183 Ga. 30 (1936)).
Prior to its amendment, Ga. Code Ann. 34-1010(b) required the nomination petition to contain the signatures of five percent of the electors registerd to vote at the next general election as of

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the close of business on the day preceding the filing of the petition. Consequently, the number of required signatures would vary from day to day as electors would register and a candidate was required to check the number of new registrations every day or else be faced with the peril of not having enough signatures. This, I believe, was the evil which the General Assembly sought to correct by using the number of electors registered to vote in the last election as the criterion. In so doing, it is clear that the General Assembly intended that when an election district has been newly created, or its boundaries changed, the number of signatures needed would be based on the number of electors in the new or altered district who were registered to vote in the last election. Any other construction would: it seems to me, wreck havoc upon the election system for it would require a candidate from a district which was made smaller by reapportionment to acquire the signatures of more than five percent of the voters in his new district whereas a candidate for nomination by petition in a newly created district could take the position that no signatures are required because five percent of zero persons eligible to vote in the last election would be zero. Accordingly, keeping the above-stated rules of construction in mind, I believe that the number of signatures needed on a nomination petition is five percent of the persons in the present election district who were eligible to vote in the last election.
Turning to your second question, I am aware of no prohibition which would prevent a teacher from becoming a candidate for a seat on the county board of education. Ga. Code Ann. 89-103 declares that no person shall hold or be commissioned to hold at any one time more than one county office. Being a candidate for office is obviously different from holding such office and thus would not fall within the above-described prohibition. Furthermore, the position of teacher in a public school is not an "office" but is merely employment (Board of Education of Doerum v. Bacon, 22 Ga. App. 72 (1918)). You did not state whether the person to whom you referred intends, if elected to the board of education, to remain an employee of such board as a teacher. I would point out to you, however, that public officers have consistently been prohibited at common law from holding two incompatible positions at the same time because of the conflict of interests presented by being, for example, both master and servant. C.J.S. Officers 23. While some states have held

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that there is no incompatibility when one of the positions is an office and the other is merely an employment (State ex ref. Horne v. Wilkinson, 220 Ala. 38; Anson v. Montgomery County, 71 Pa. Super. 225), I believe that the Georgia courts, by keeping in view the evil and the remedy (Ga. Code Ann. 102-102(9), supra) could find a common law conflict of interest in ~:')situation in which a member of the school board serves also as a teacher employed by such board.

OPINION 68-232

June 5, 1968

You have requested my opmwn on the legality of a State bank's pledging its assets to secure certain types of deposits when the governing authority controlling these deposits requires the bank to give security for the deposits. You mentioned that several hospital and housing authorities require this type _of security for their deposits and you particularly point out Ga. Code Ann. 13-2046 for my attention and opinion as to whether it is controlling in this instance.

Ga. Code Ann. 13-2046 prohibits a bank from paying money or transferring its assets after insolvency or in contemplation of insolvency with a view towards preventing application of its assets in the manner prescribed by law or with the view to the preference of one creditor over another if such payment or transfer was made within three months prior to the failure of such bank. This law only prohibits a pledge or payment of a bank's assets when the bank is insolvent or is in contemplation of insolvency and such payment or transfer is made with the intent by the bank to prefer one creditor over another. This is so even if the transfer or payment is made within three months prior to the failure of the bank. McCallum v. Twiggs County Bank, 172 Ga. 591, 158 S.E. 302 (1931).

Without the intent to prefer one creditor over another and the three months' limitation set out above, Ga. Code Ann. 13-2046 would not prevent a transfer or pledge of assets by a State bank to secure deposits. I am unable to find any other law which would prohibit such a transfer or payment. In view of Ga. Code Ann. 13-1801(6)(7), which empower a bank to incumber or dispose of real and personal property as may be necessary for its business and to receive and pay out deposits, it is my opinion that a State bank may pledge its assets to secure deposits as set forth in this opinion.

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OPINION 68-133 (Unofficial)

June 6, 1968

This is in reply to your letter of May 27, 1968, asking our opinion regarding the costs of examining and validating a nomination petition submitted to the Ordinary who is paid on a fee basis. Specifically, you have asked whether the Ordinary may assess such costs against the person submitting such nomination petition.
Ordinaries are charged, among other things, with the duty to receive and determine the sufficiency of nomination petitions (Ga. Code Ann. 34-401 [e]). Ga. Code Ann. 34-402 provides that:

"[T]he governing authority of each county shall appropriate annually, and from time to time, to the ordinary of such county, the funds that it shall deem necessary for the conduct of elections in such county and for the performance of his other duties under that Code. . . ."

Thus, the law seems clearly to impose a duty upon the Ordinary the costs of which are to be borne by the county. Accordingly, I do not believe that the Ordinary would be authorized to assess the costs incurred in examining the nomination petition against the candidate submitting the same. Additionally, if no appropriations are made to cover such expenses, the Ordinary may be compensated for his services pursuant to the method prescribed in Ga. Code Ann. 24-110.

OPINION 68-234 (Unofficial)

June 10, 1968

You ask our opinion whether the advent of "daylight savings time" effects Ga. Code Ann. 34-1304 which requires that, at all primaries and elections, the polls shall be opened at 7 o'clock a.m. and closed at 7 o'clock p.m., Eastern Standard Time. Additionally, you have asked an opinion whether nomination petitions circulated after June 12, 1968, are valid.

The term daylight savings time is a misnomer because Congress has provided that:

"(a) During the period commencing at 2 o'clock ante meridiem in the last Sunday of April of each year, and

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ending at 2 o'clock ante meridiem on the last Sunday of October each year, the standard time of each time zone ... shall be advanced one hour and such time as so advanced shall . . . as so modified, be the standard time of such zone during such period . . . . . " Pub. L. 89-387 3 (15 U.S.C.A. 260[a]). [Emphasis added.]
Consequently, there is no variance between the time standard presently observed by the State and the time standard required by the Election Code as both are Eastern Standard Time. The fact that the Republican Party Rules may designate the times for opening and closing of the polls as Daylight Savings Time could in no way alter the clear requirements of the Election Code inasmuch as the party is expressly authorized to adopt only these rules and regulations consistent with law. (Ga. Code Ann. 34902(b)(c)).
Turning to your second question, I am aware of no State law which would invalidate nomination petitions circulated up to the deadline of sixty (60) days prior to the general election prescribed by Ga. Code Ann. 34-1001(b). Sixty (60) days prior to the general election of 1968 will fall on September 5, 1968. The date of June 12, 1968, mentioned in your letter is the last day that a political party may set for candidates for nomination by primary to qualify with such party (Ga. Code Ann. 34-1006). It is also the last date by which a party may legally hold a convention for the purpose of nominating candidates [Ga. Code Ann. 341012(e)]. A candidate for nomination by primary is not required to submit a nomination petition. A candidate selected by convention may or may not be required to submit a nomination petition depending upon the conditions set forth in Ga. Code Ann. 34-1001 (c). If he is required to submit a nomination petition however, I believe that such a candidate could circulate his petition until the deadline date of September 5, 1968.

OPINION 68-235

June 10, 1968

This is in reply to your request for my official opinion regarding the interpretation of certain portions of the new Implied Consent Bill, Senate Bill No. 120, which was signed into law on March 27, 1968, and which now bears the designation of Act No. 943. For purposes of clarity and expediency each of your questions will be considered separately.

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Your first question deals with the apparent conflict between Section 47, paragraph (b), subparagraph (2), and Section 47, paragraph (b), subparagraph (6). Section 47, paragraph (b), subparagraph (2) reads as follows:
"If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the person was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining whether the defendant was under the influence of intoxicating liquor."
Section 47, paragraph (b), subparagraph (3) reads as follows:
"If there was at the time 0.10 per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor."
Section 47, paragraph (b), subparagraph (6) reads:
"The result of any such test shall not be admissible in evidence against the defendant, and no record thereof shall be preserved, and no notation of the result of the test shall be made on the driver's license of the person tested, if the test does not indicate that there was, at the time of the test .10 percent or more by weight of alcohol in the blood of the person tested."
Thus, in comparing the provisions of subparagraph (2), supra, and subparagraph (6), supra, it is to be noted that although subparagraph (2) provides that the results of a test which indicate that there was an excess of 0.05 percent but less than 0.10 percent by weight of alcohol in the accused's blood can be introduced and considered as competent evidence in proving the charges that the defendant was under the influence of intoxicating liquor, yet, the provisions of subparagraph (6) completely abrogate the use, of these results as evidence by providing that any test results which indicate that there was less than .10 percent by weight of alcohol in the person's blood shall not be admissible in evidence nor are any records of the results of the test to be preserved. Hence, you wish to know which of these two conflicting provisions should be followed by your department.

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It is my official opinion that since there is an irreconcilable conflict between these two above-quoted provisions, then the latter provision as is embodied in subparagraph (6) should prevail and, therefore, any test results which indicate that less than .10 percent by weight of alcohol existed in the blood of the persori tested should not be recorded nor should records of the results be preserved. Furthermore, these results are not admissible into evidence nor may these results be considered with other evidence in proving that the person tested was under the influence of intoxicating liquor.
It is a well-established principle of Georgia law that all parts of a legislative enactment should, if possible, be harmonized and so construed as to reconcile apparent conflicts so as to give effect to the apparent intention of the lawmakers. See Harris v. State, 221 Ga. 398 (1965). Also, where there is an apparent conflict between different sections of the same statute these conflicting provisions must be reconciled if possible so as to make them consistent with one another. See Undercofler v. Capital Auto Co., 111 Ga. App. 709 (1965). However, when there is a conflict between two parts of a single act which are irreconcilable the latest in position will be declared the law because it is presumed to be the last expression of the legislative will. Thus, where two parts of an act are in contradiction to each other, the latter will prevail. See Stansel v. Fowler; 113 Ga. App. 377 (1966); Undercofler v. Capita/Auto Co., supra; Vickery v. Foster, 74 Ga. App. 167, reversed 202 Ga. 55, conformed to 75 Ga. App. 121 (1946); and Board of Drainage Comm'rs of Jackson County, Drainage Dist. No.2 v. Carey, 30 Ga. App. 378 (1923).
Thus, it appears the Legislature in its drafting of this Act intended that those tests which indicate that there was an excess of 0.05 percent but less than 0.10 percent by weight of alcohol in an accused's blood could be considered as some evidence of the fact that an accused was under the influence of intoxicating liquor. But the Legislature in subparagraph (6) unequivocally provides that a test result which indicates that, at the time of a test, less than 0.10 percent by weight of alcohol existed in the blood of the person tested shall not be preserved as a matter of record and that such results shall not be admissible in evidence. Therefore, pursuant to the above-cited decisional authority only one conclusion can be reached: That the provisions of subparagraph (6) are controaing and that the Legislature by enacting

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subparagraph (6) and inserting the phrase ".10 percent" thereby abrogated those provisions of subparagraph (2) which allowed the test result of 0.05 percent but less than 0.10 percent to be admissible as some evidence in the proof of charges that a person was under the influence of intoxicating liquor.
In your second question you would like to know if the provisions of Section 47, paragraph (f) which state that, "The expense of such examination shall be borne by the court having jurisdiction of said alleged offense ...." includes the doctor's fee and any costs the county or municipality may have in making the analysis of the drug or alcohol in the blood.
It is my official opinion that all expenses incurred in an examination conducted pursuant to the conditions and provisions of this particular code section must be borne by the court having jurisdiction over the said alleged offense. First of all, it should be noted that paragraph (f) of Section 47 deals with a different means of intoxication. Whereas all other portions of this statute deal with alcoholic intoxication this particular paragraph deals with intoxication by a narcotic drug. The Supreme Court has stated that where a statute is unambiguous it must be taken to mean what has been clearly expressed and no occasion for further construction exists. See Forrester v. Interstate Hosiery Mills, 194 Ga. 863 (1943). Thus, it is my opinion that the provisions of paragraph (f) make it mandatory on an arresting officer when it becomes necessary for him to incarcerate a person suspected of violating the provisions of this subsection, in other words, a person who is under the influence of any narcotic drug or who is under the influence of any other drug to a degree which renders him incapable of safely driving or operating a vehicle, to summon as soon as possible a physician to examine the party so apprehended. Once a physician performs any examination pursuant to the conditions as set forth, paragraph (f) expressly provides that any expenses incurred during such examination shall be borne by the court having jurisdiction of said alleged offense. Finally, it should be noted that paragraph (f) is limited only to the question of intoxication by drugs and, therefore, the provisions for the expenses of an examination under this paragraph would be limited to those expenses incurred in the examination by a physician to determine whether or not an individual was under the influence of a narcotic or other type of drug.

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In your third question you inquire as to whether there is a conflict between the provision in the implied consent section of this law, Section 47A, in particular, paragraphs (a) and (g) of this section. It is my official opinion that there is no conflict present. The portions of these two paragraphs which are the basis for your inquiry are as follows:
Paragraph (a) provides in part:

"Any person who drives or operates a motor vehicle upon a

public road or highway of this State shall be deemed to have

given his consent to a chemical test, administered pursuant

to the provisions of Section 47, of his blood or breath for

the purpose of determining the alcoholic content of his blood

if lawfully arrested for any offcmse allegedly committed while

the person was driving or operating a vehicle under the

influence of intoxicating liquor

"

Paragraph (g) provides in part:

"Any person who is arrested for dr.iving or operating a vehicle while under the influence of intoxicating liquor shall have the right to demand a blood or breath test to determine the amount or weight of alcohol in his blood. It is mandatory upon the officials in whose custody he shall have been placed after arrest to have a blood or breath specimen taken for the purpose of determining the amount of alcohol in the person's blood, if the facilities for obtaining such specimens are available in the county of his confinement, and to have said specimen analyzed according to the procedures provided therefor by this Section . . . ."

In your inquiry you stated that it was your opinion that there is a conflict present in that paragraph (a) of this Section seems to infer that it is mandatory to submit to the test whereas in paragraph (g) it appears that the accused has the right to demand a test.

First of all, it should be pointed out that you were correct in your conclusion as to the effect of these provisions, however, there is no conflict present. You are correct to the extent that you have concluded paragraph (a) of Section 47A makes it mandatory on an individual who is lawfully arrested for any offense allegedly committed while operating a vehicle under the influence of intoxicating liquor to submit to a blood or breath test to

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determine the alcoholic content of his blood. This is mandatory in that the statute expressly provides that when such a person operates a motor vehicle upon the public roads or highways of this State he is, in so doing, deemed to have given his consent to such a test. But it should be noted that the test which is referred to under paragraph (a) of this Section indicates that this test would be given pursuant to a request by the arresting officer and construing this Section with the other provisions of Section 47 it would be concluded that the results of this test would be used as evidence in any prosecution brought by the solicitor general for the violation of the provisions of this statute. You are also correct that paragraph (g) gives an individual who is arrested for driving under the influence of intoxicating liquor the right to demand a blood or breath test to determine the amount of alcohol in his blood and that upon such a demand it is mandatory upon the officials in whose custody he has been placed after arrest to have a blood or breath test performed. This provision, in effect, provides a person, who is arrested under the provision of this Act, the right to demand and have a test performed in the event the arresting officer does not request that a test be performed. Thus, this Act establishes two methods by which a test of this type may be initiated.
It should be noted, however, that paragraph (g) inserts a proviso to an arrested person's right to demand a blood test. This proviso is to the effect that this demand may be denied if the facilities for obtaining such specimens ae unavailable in the county of his confinement. On the other hand, if the facilities are available then paragraph (g) provides that a specimen obtained must be "analyzed according to the procedure provided therefor by this Section." It is my opinion that the specimen from the demanding arrested accused would then be analyzed according to Section 47, paragraph (c) which by its provisions places the responsibility on the State Crime Laboratory to establish procedures and methods of state-wide testing and to ascertain the qualifications and to select individuals who are to conduct these analyses.
Your fourth question deals with Section 47A, paragraph (h). This paragraph provides:
"No licensed physician, registered nurse, medical examiner, or ASCP certified medical or laboratory technician or aide

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shall incur any civil or criminal liability as a result of the proper obtention of such specimens for the purpose of determining the alcoholic content thereof when requested in writing by a law enforcement officer to administer such a test."
Your question was whether it is mandatory that a law enforcement officer must make a written request to the physician, nurse or other legally designated person in every case. Although your question is somewhat vague, I assume that you mean to ask whether a physician, nurse or other legally designated person may administer a test upon an oral request by a law enforcement officer or must this request always be in writing. The only other provision in this entire implied consent act which deals with the question of the requisites of a request by the law enforcement officer to the official designated to administer the test is found in Section 47A, paragraph (f) which provides in part: "Only a licensed physician, registered nurse, medical examiner or ASC P certified medical or laboratory technician or aide acting at the request of a law enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein . . . ." It is to be noted that the provisions of paragraph (f) do not mention a written request.
However, it is my opinion that these two provisions are not in conflict. Pursuant to Section 47A, paragraph (f), a person qualified to perform these extractions and tests may perform an extraction upon the issuance of a request by a law enforcement officer. This section does hot specifically require that the request be in writing. Therefore, it is to be concluded that a person authorized under this Act to perform extractions could, pursuant to the. provision of paragraph (f), proceed with his duties upon the issuance of an oral request by a law enforcement officer. In regard to the possibility of civil liability of a qualified person who extracts blood pursuant to an oral request of a law enforcement officer and under the authority of legislative sanction, compare the opinion to your office dated May 14, 1968, which dealt with the subject of the possibility of civil liability of a medical examiner who extracts blood specimens pursuant to the provisions of Ga. Code Ann. 21-227 (Georgia Post Mortem Act). Moreover, it is to be noted that the Legislature has specifically dealt with the question of civil liability of a qualified person who performs extractions pursuant to the provisions of this. Act. Section

320
47A,paragraph (h) exempts such persons from civil or criminal liability if the obtention is performed pursuant to a written request by a law enforcement officer. Therefore, as a matter of practicality and in the protection of the interest of the person administering this test a written record of the request by the law enforcement officer should be demanded.
Finally, in closing, it should be explicitly pointed out that Section 47A, paragraph (h), protects qualified persons who administer obtention procedures and perform tests, from civil and criminal liability only when "proper obtention" methods are followed. Therefore, these persons should be cautioned that these statutory provisions will not afford protection to anyone who performs his duties corruptly, maliciously, or in a negligent manner. See Commercial Trust Co. of Hagerstown v. Burch, 267 F. 907 (1920); Vickers v. Motte, 109 Ga. App. 615 (1964).

OPINION 68-236 (Unofficial)

June 11, 1968

You state, that as general counsel for U.S.N. Co., Inc., you have given them your opinion that no license from the State of Georgia is required for your client to supply its money orders to Federal credit unions for sale at the offices of said Federal credit unions. You concede that your client has complied with the licensing requirements of New York, Pennsylvania, Ohio, New Jersey, Massachusetts and others, but is not licensed in Georgia.
The Georgia Sale-of-Checks Act provides that no one, with certain exceptions not here relevant, may engage in the business of selling money orders without first obtaining a license. This includes any nonresident who engages in this State in the business of selling '()r issuing checks through an agent in this State. Ga. Code Ann. 13-2203. Anyone who violates this law is guilty of a misdemeanor. Ga. Code Ann. l3-9939(a).
While we do not dispute that Federal credit unions may sell money orders, we feel quite strongly that any private, unlicensed money order company must first be licensed in Georgia before it can legally operate here.

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OPINION 68-237 (Unofficial)

June 11, 1968

You have asked my opinion whether a change of the city limits of Ellaville resulted in a change in the boundaries of the 961st Georgia Militia District when one of the boundaries of such district is described as the city limits of Ellaville.
The procedure for changing the boundaries of a milita district are specified in Ga. Code Ann. 23-204. Furthermore, militia districts are to remain as organized unless changed in accordance with Ga. Code Ann. 23-203, et seq. A change in city limits is not one of the means specified ip the laws of Georgia for changing the boundaries of militia districts. Accordingly, I believe that a change in the Ellaville city limits did not affect ~he boundary of the 961st G.M.D. which remains the city limits of Ellaville at the time such militia district was created or last changed in accordance with law.

OPINION 68-238 (Unofficial)

June 12, 1968

Responding to your letter asking whether a Georgia elector may use a voting machine or vote recorder when casting an absentee ballot, this is to advise you that the Georgia Election Code requires paper ballots for electors casting absentee ballots (Ga. Code 34-1401 et seq.).

OPINION 68-239

June 13, 1968

This will acknowledge receipt of your request for an official opinion in answer to the following question:
... whether an employee of the State, under the Merit System or not, can serve and/or receive compensation or per diem as a member of an administrative or advisory board of a department of State government.
Furthermore, this will acknowledge the information give": orally whereby you stated that the member in question of the State Board of Children and Youth had resigned from membership on

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said board, thus resulting in the above-captioned request becoming moot.
Furthermore, this will acknowledge your oral request that your above referred to request for an official opinion be withdrawn as of this date.

OPINION 68-240

June 14, 1968

You request my official opinion regarding whether or not Workmen's Compensation coverage is required for employees of private non-profit organizations and Boards of Education, when both are engaged in administering eight-week Summer Head Start Programs.

OPINION

It is my official opinion that inasmuch as counties must provide Workmen's Compensation benefits for all county schtol board employees working a full work week, whatever the duration of employment, such coverage must be provided in connection with Head Start Programs administered by a county board of education. Where, however, the Head Start Program is administered by a private, non-profit organization, there is no requirement that workmen's compensation be provided.

DISCUSSION

Private organizations not engaged in any business operated for gain or profit are not "employers" within the definition of Ga. Code Ann. 114-101, as amended, and are, therefore, not subject to the Workmen's Compensation Act. This would rule out the applicability of such Act in situations where the Head Start Program is administered by a private, non-profit organization.

The situation is quite different as regards employees of county boards of education, since such employees have long been considered as employees of the county for purposes of Workmen's Compensation. Ops. Att'y Gen. (1963-1965, pp. 760-762; 19601961, pp. 168-170.) County employees have been included under Workmen's Compensation since 1958, such coverage having been financed through general county tax funds. Ga. Code Ann. 114101 (as particularly amended by Ga. Laws 1958, p. 183).

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County boards of education were authorized "to provide for Workmen's Compensation for school personnel and to pay for the same from educational funds" by Art. VII, Sec. IV, Par. I of the State Constitution, as amended in 1964 (see Ga. Code Ann. 25701(18)). From 1964 until 1966 if county boards of education did not act pursuant to this constitutional authorization and provide coverage from educational funds, the counties themselves were still obligated to furnish same for school personnel just as for other county employees by expending general county tax funds.
In 1966 Art. VII, Sec. IV, Par. I, supra was superseded in its entirety by the ratification of a new Art. VII, Sec. IV, which now includes Par. I through Par. VI. This latest expression of the will of the people provides in Par. II in relevant part:
"... counties are hereby authorized to exercise the power of taxation for the following purposes which are hereby declared to be public purposes and expend funds raised by the exercise of said powers for said purposes and such other public purposes as may be authorized by the General Assembly:
"10. Provide ... workmen's compensation benefits ... for public school teachers and personnel, their dependents and survivors: Provided that all such payments for public school teachers and personnel, their dependents and survivors, shall be paid from education funds."
A recent amendment to Ga. Code Ann. 114-IO I (Ga. Laws 1968, pp. 1163, 1164) has specifically included "all full-time county employees" under the Act, and should finally resolve any lingering doubts regarding applicability of the law to school board personnel.
Any question regarding whether or not employment for an eight-week period constitutes "full-time" employment must be governed in its answer by the ordinary signification attached to the word "full-time." Ga. Laws 1958, pp. 388, 389 (Ga. Code Ann. l02-l02(l)). In the modern industrial community fulltime has most often been used to designate employment characterized by sufficient hours per day and days per week to distinguish such employment from part-time. Full-time in this connotation has nothing to do with duration of such weekly employment, the duration being limited by "temporary" or

324 "permanent," and the phrases "temporary full-time" "permc.lnent part-time" are unambiguous.

OPINION 68-241 (Unofficial)

June I, 1968

You relate that you are presently serving as a member of the Board of Tax Assessors for Atkinson County, Georgia, and also as a member of the County Board of the Department of Family and Children Services. Further, you state that you have qualified as a candidate in the September Democratic Primary for a position as a member of the Board of Commissioners of Roads and Revenues of Atkinson County, and your question is whether your present positions of Tax Assessor and member of the Board of Family and Children Services will make you ineligible to serve on the Board of Commissioners of Roads and Revenues.
Ga. Code Ann. 92-6907 provides that "the members of the Board of Tax Assessors shall be ineligible to hold any State, county or municipal office during the time they hold their offices, but they may be reappointed to succeed themselves as members of said Board."
The position of Commissioner of Roads and Revenues being a county office, Malone v. Minchew, 170 Ga. 687 (1930), it is clear that you are not eligible to hold such position during the time in which you occupy the position of Tax Assessor. If you were to resign as a Tax Assessor prior to the time at which you assume the office of member of the Board of Commissioners of Roads and Revenues, I would think that the conflict would be removed.

With reference to your position on the County Board of Department of Family and Children Services, I refer to Ga. Code Ann. 99-503, which provides that no elected officer of the State or any subdivision thereof shall be eligible for appointment to the County Board of Family and Children Services. Further, it is provided in Ga. Code Ann. 99-503, that the members of the County Board of Family and Children Services are appointed by the Director of State Department of Family and Children Services on the recommendation and nomination of the County Commissioner or Board of Commissioners. In view of this, an obvious conflict would exist in a case in which a person occupied a position on the County Board of Family and Children Services

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and at the same time served as a member of the Board of Commissioners of Roads and Revenues.

OPINION 68-242

June 14, 1968

This will acknowledge receipt of your letter wherein you enclosed two brochures of the Great Lakes Nursery Corp. and asked my opinion relative to whether the "franchise service" therein proposed violates the laws of Georgia. Specifically, your question involves whether a person growing Christmas trees under a franchise agreement with said Great Lakes Nursery Corp. would be engaged In the illegal practice of professional forestry in Georgia.
It is necessary that I preface my opm10n by giVmg my impression of what such a "franchise service" involves. From the brochures you sent, it appears that the franchisor sells young trees to the franchisee, who in turn plants and cultivates the trees. It further appears that, after the trees have been grown and marketed, the franchisee gets a wholesale and/or retail income based on a percentage of the gross sales.
Ga. Laws 1951, p. 581, as amended (Ga. Code Ann. 43-201A (c)), provides inter alia, that:
"Notwithstanding paragraph (b) or any other provisions of this Chapter, nothing herein shall be construed as preventing or prohibiting any person from managing or otherwise conducting forestry practices on lands owned, leased, rented or held by such person; nor shall anything herein prohibit any regular employee or official of any person, corporation, agency, institution or other entity from engaging in professional or other forestry practices on lands owned, leased, rented or held by such person, corporation, agency, or other entity. . . ."
Considering the above quoted Code section in connection with the statement of facts hereinabove set out, it is my opinion that a franchisee who grows trees on land owned, leased, rented or held by him or on lands owned, leased, rented or held by a person, corporation, agency or other entity to which he bears the relationship of employee would not be violating the provisions of Ga. Code Ann., Ch. 43-2A. It must be assumed that either the

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franchisee would be the owner, lessee, tenant or holder of the land on which the trees were grown or such franchisee would be the employee of the franchisor which would be the owner, lessee, tenant or holder of the land. If either of the foregoing were applicable in any particular situation, it would be my opinion that the law relative to the registration of persons conducting forestry practices would not apply.

OPINION 68--243

June 17, 1968

This is in response to your request for my official opinion as to whether or not the State Board of Education may promulgate rules and regulations pursuant to H. B. 1375, 1968 Session, Georgia General Assembly, which provides the following:

"SECTION I

"The State Board of Education is hereby authorized to promulgate rules and regulations, to regulate contracts or purchases which involves the aggregate sum of one hundred ($100.00) dollars or more for or on behalf of students of any public elementary or secondary school supported in whole or in part from public funds.
''SECTION 2

"No person shall enter into any contract or make any purchase which involves the aggregate sum of one hundred ($100.00) dollars or more for or on behalf of students of any
public elementary or secondary school supported in whole or in part from public funds unless such person has complied, prior to entering into said contract or purchase, with such rules and regulations as promulgated by the State Board of Education for making purchases for the students in said schools;

"SECTION 3

"Any person who violates the provisions of Section 2 shall be subject to such discipline measures as provided by the State Board of Education.
"SECTION 4
"All laws and parts of laws in conflict with this Act are hereby repealed."

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OPINION
I am of the opinion that it would be unwise for the State Board of Education to promulgate rules and regulations in accordance with this Act because decisions of the Supreme Court of Georgia raise grave doubt as to its constitutionality under one or more provisions of the Georgia Constitution of 1945.
DISCUSSION
The Constitutional prohibition against delegation of legislative powers does not preclude the General Assembly from authorizing a board to adopt rules and regulations to carry' into effect a law already passed, but it does preclude the General Assembly from authorizing a board to determine what the law shall be and prescribe penalties or sanctions for violations. Bibb County v. Garrett, 204 Ga. 817, 826 (1949), Long v. State, 202 Ga. 235 (1947), Bohannon v. Duncan, 185 Ga. 840, 843 (1938). One of the most important tests in determining whether a particular Act is an invalid delegation of legislative power is the completeness of the Act when it leaves the hands of the General Assembly. Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358, 365 (1939). In order to avoid being repugnant to Art. Ill, Sec. I, Par. I of the Georgia Constitution of 1945 (Ga. Code Ann. 2-130 l) proscribing the delegation of legislative powers, an Act must plainly set forth the purpose of the legislation, clearly mark its limits, and grant to designated administrators the power to promulgate rules within the scope of the legislation. Phillips v. City of Atlanta, 210 Ga. 72, 74 (1953), Crawley v. Seignious, 213 Ga. 810, 812 (1958), Gartrell v. McGee, 216 Ga. 125, 128 (1960). The authority to adopt rules and regulations must be limited to the carrying out of a particular purpose set forth in the Act. Pearle Optical of Monroeville, Inc. v. State Board of Examiners in Optometry, 219 Ga. 364, 374 (1963).
No extended discussion is necessary to demonstrate that the appellate courts of Georgia probably would hold that the Act in question contravenes the constitutional prohibition against delegation of legislative powers. The General Assembly has purported to grant the State Board of Education unlimited power to make laws and prescribe penalties for the violation thereof with reference to the entering into of any contract or purchase involving an aggregate sum of $100.00 or more which is made for or on behalf of students of any public elementary or secondary

328
school supported in whole or in part from public funds. The Supreme Court of Georgia repeatedly has held that similar attempts to abdicate legislative power and responsibility are forbidden by the Georgia Constitution.
Further, it is to be anticipated that the appellate courts of this State would view this Act as an unauthorized encroachment upon the freedom of individuals to engage in competitive and legitimate business because it is not narrowly drawn to relate reasonably to some legitimate public concern. Moultrie Milk Shed v. City of Cairo, 206 Ga. 348 (1950). Tlie Police Power may not be exerted arbitrarily or unreasonably. Humthlett v. Reeves, 212 Ga. 8, 19 (1955). It is impossible to determine what limitations, if any, the General Assembly intended to impose upon the rule-making power of the State School Board. As written, the Act would appear to grant to the State Board of Education power to make rules and provide penalties with reference to the purchase of an automobile costing over $100.00 by a father out of his personal funds, in behalf of his two sons who attend a public secondary school in the State of Georgia which is supported in whole or in part from public funds. Such an application of this statute would, of course, be wholly unconstitutional, and is given solely for the purpose of illustrating the vagueness of the Act and the boundless discretion which it attempts to confer upon the State Board of Education.
A court also might hold that this Act violates Art. VIII, Sec. V, Par. I of the Georgia Constitution of 1945 (Ga. Code Ann. 2-6801) in that it attempts to divest control and management vested by the Constitution in boards of education of county school systems. Tipton v. Speer, 211 Ga. 886 (1955), Bedingfield v. Parkerson, 212 Ga. 654, 656 (1) (1956).
Since grave doubts exist as to the constitutionality of this Act, it would be unwise for the State Board of Education to promulgate rules and regulations pursuant to it. "An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection ... it is, in legal contemplation, as inoperative as though it had never been passed." Stewart v. Davidson, 218 Ga. 760, 764 (1963).

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OPINION 68-244 (Unofficial)

June 17, 1968

This is in reply to your letter of June 12, 1968, asking our opinion regarding the minimum age for voting registration purposes in Georgia.

The qualifications for electors in Georgia are found in Ga. Code Ann. 34-602. One such qualification is that an elector be at least 18 years of age (Ga. Code Ann. 34-602(c)). However, a person may register if he will attain 18 years of age within 6 months of his registration, but he shall not be permitted to vote until reaching the age of 18 years (Ga. Code Ann. 34-602(e)). Accordingly, I believe a person may register to vote if, on the day of his registration, he has attained the age of 17 1/2 years but that he may not vote in any election until he attains 18 years of age.

OPINION 68-245 (Unofficial)

June 17, 1968

This is in reply to your recent request concerning the legality of horse racing in the State of Georgia. Your particular question was whether or not horse racing is illegal in Georgia.

It is my unofficial opinion that the present statutes of Georgia do not prohibit the activity of horse racing.

The only provisions of the Georgia statutes dealing with horse racing are found in Ga. Code Ann. 26-6915 and Ga. Code Ann. Ch. 26-75.

Ga. Code Ann. 26-6915 authorizes the municipalities throughout Georgia to control the operation of theaters and holding athletic events, games and contests on Sundays. These provisions provide:

"Since motion picture theatres are being operated, and athletic events, games and contests are being held, on Sundays in most of the principal towns and cities of the State, it is hereby declared to be the policy of this State that a method should be provided whereby the citizens of any town or county may provide for the operation or prohibit the operation of motion picture theatres, and for holding of

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athletic events, games and contests, or for prohibiting the same, on Sundays. Nothing in sections 26-6915 to 26-6920 shall legalize horse or dog racing within the State of Georgia."
A copy of the provisions of Ga. Code Ann. Ch. 26-75 dealing with fraudulent entries and practices in speed contests has been enclosed. The pertinent provisions of this chapter relating to your question are found in Ga. Code Ann. 26-750 l which provide in part:
"Any person who shall knowingly and corruptly enter, or cause to be entered, for competition, or to compete for any prize, purse, premium, stake, or sweepstakes, offered by an agricultural society or driving club, or other society organized under laws of this State, where the same is to be decided by contests of speed, any horse, mare, gelding, colt, or filly, under assumed or false name, or out of its proper class or division, with intent to cheat or deceive such society or organization or association, shall be guilty of a misdemeanor."
At the present time there are no other statutes in existence which deal with the activ:cy of horse racing in Georgia. It is clearly evident from the provisions of the above-cited code section that there is presently in existence no express prohibition against the activity of horse racing in Georgia. It is a well-known principle of statutory construction in Georgia that penal laws are to be strictly construed. See Lovett v. State, 111 Ga. App. 295, 141 S.E.2d 595 (1965). Also, penal statutes must be strictly construed and not extended beyond their precise and plain provisions, and they will not be given such a constructional interpretation as will make penal any act not therein plainly made penal and prohibited. See State v. Schafer, 82 Ga. App. 753, 62 S.E.2d 446 (1951); Colson v. Aderhold, 52 F. Supp. 111, aff'd 73 F.2d 191 (D.C. Ga. 1934).
The only provision of the above-cited Code section which might create some question of the legality of horse racing is the provision in Ga. Code Ann. 26-6915 which provides in part: "Nothing in sections 26-6915 to 26-6920 shall legalize horse or dog racing within the State of Georgia." However, pursuant to the above citations of authority regarding the construction of penal statutes it is to be concluded that this sentence alone cannot

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be construed in any manner to establish a prohibition against horse racing in Georgia. Furthermore, the Supreme Court of Georgia has recently reiterated the proposition that a penal statute cannot be expanded by implication in the case of Wood v. State, 219 Ga. 509, 134 S.E.2d 8 (1963).
Hence, since there are no statutes in existence which presently make horse racing a criminal offense in Georgia and since the present statutes dealing with horse racing cannot be enlarged by implication to prohibit this activity, then it is to be concluded that horse racing in Georgia is not illegal.
As a word of caution, it should be noted that this unofficial opinion deals only with the question of horse racing in Georgia and does not concern itself with the question of parimutuel betting on such races or other activities of this type within the State.
It is hoped that this information will be of some assistance to you in advising your client, the American Quarter Horse Association, concerning the supervision of merit awards to members of the association.

OPINION 68-246 (Unofficial)

June 17, 1968

This is in reply to your letter of June 5, 1968, asking the proper procedure for creating more polling places.

"The words 'polling place' shall mean the room provided in each election district for voting at a primary or election." Ga. Code Ann. 34-l03(w). Similarly, an "election district" is a district within which all electors vote at one polling place. Ga. Code Ann. 34-103([). Accordingly, it is clear, I believe, that there can only be one polling place per election district. Thus, in order to create more polling places, it is first necessary to create more election districts.
The procedure for creating new election districts is set forth in Ga. Code Ann. Ch. 34-7. Stated briefly, the Ordinary may create new election districts upon petition of twenty electors, the county executive committee of a political party or the Board of Registrars if, in his opinion, the new election districts will promote the convenience of electors. Furthermore, by an

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amendment to the Election Code approved April 3, 1968, the Ordinary is required to reduce the size of an election district upon the oath of the poll manager of an election district containing more than 2,000 persons that all electors desiring to vote had not completed voting one hour following the close of the polls. Ga. Code Ann. 34-704.1. If you plan to change election districts, it will be necessary to do so no later than 60 days prior to the forthcoming general primary and no later than 30 days before any special primary or election which may be scheduled in this county. Ga. Code Ann. 34-702.

OPINION 68-247

June 17, 1968

You ask that this office interpret what constitutes a "leasehold interest in standing timber'' as such phrase is used in Act No. 1200, H. B. 1197 (passed by the 1968 Session of the General Assembly of Georgia as an Amendment to the Georgia Real Estate Transfer Tax Act [Ga. Laws 1967, p. 788]).
The language to which you refer is an Amendment to Section 3 of said Act and which reads as follows:

"Provided further than the tax imposed by Section I shall not apply to any instrument or writing which conveys no more than a leasehold interest in standing timber."
In Hayes v. City of Atlanta, 1 Ga. App. 25, 30 (1907) the court, quoting Black's Law Dictionary, defined a leasehold as "an estate in realty held under a lease." The court, relying on the same authority then defined "lease" as "a conveyance of lands or tenements to a person for life, for a term of years, or at will, in consideration of a return of rent or some other recompense.''

Based on the rules of statutory construction and the quoted definitions of "leasehold" it is my opinion that it was the legislature's intent to exclude from the transfer tax those instruments which created nothing more than an estate for years in standing timber; and conversely, any instrument which conveyed a greater interest in standing timber would still be subject to the transfer tax.

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OPINION 68-248 (Unofficial)

June 18, 1968

This will acknowledge your letter in regard to licensing private employment agencies in Georgia.

I am afraid that there has been a misunderstanding in regard to there being an opinion of the Attorney General as to the necessary requisites for a corporation to be licensed under the Georgia Private Employment Agency Act. There have been no opinions, official or unofficial, given on this subject. In your letter, you stated that it was the opinion of the Attorney General that for a corporation to obtain a license,

. . . would require the corporation itself to be a registered Georgia corporation for at least two years and that this could be done by way of three stockholders, each holding the residence requirement, and the majority stockholder meeting the experience requirement.

Your attention is called to Ga. Laws 1959, pp. 283, 284 (Ga. Code Ann. 84-4102[b]) which provides in regard to the licensing of private employment agencies that:

Every applicant for the license shall have been a resident of the State of Georgia at least two years immediately preceding the filing of such application, and have had at least two years experience as a placement counsellor. The provisions of this subsection shall not apply to persons or corporations now licensed in Georgia.

You will note that there is no specific authorization for an applicant being a corporation; however, by a reading of the entire statute such appears to have been within the intent and purposes of the legislature when enacting the legislation. This intent is abundantly clear from the second sentence of the above-quoted section which provides that the section does not apply to " . . . corporations now licensed in Georgia."

Additionally, your attention is called to Ga. Code Ann. 844102(f) which provides, in part, as follows:

If the applicant is a corporation, the applicant [sic] shall state the names and addresses of the officers and directors

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of said corporation and shall be signed and sworn to by the president and treasurer thereof.
Therefore, it is assumed that a corporation may be an applicant for a license to operate as a Private Employment Agency.
After assuming that a corporation may be such an applicant, we next must turn our attention to the procedure by which a corporation qualifies for a license. As noted by the above-quoted Ga. Code Ann. 84-4l02(b), provision is made that an applicant " . . . shall have been a resident of the State of Georgia at least two years immediately preceding the filing of such application, . . ." which raises the question as to the procedure by which a corporation meets such a residency requirement.
It is well established corporation law that a corporation is a legal entity having qualities in and of itself which are separate from the qualities of any of its officers, stockholders, or directors. Although a corporation is an artificial person, it has a "residence" within our forensic system.
Your attention is called to the following statement found in Nadler, Georgia Corporation Law, 218, pp. 223,224 (1950):
Since an association of persons may choose any state in the Union in which to incorporate, a corporation has unrestricted right to pick out whichever state it prefers to be created and to continue to be. The actual residence or citizenship of the officers, directors and stockholders are immaterial and do not determine the residence or citizenship of the corporation. This is even true of the incorporators, because in states like Georgia and Alabama, the qualifications of incorporators have no restrictions as to their individual residence or their citizenship, while in those states that do expressly require either or both residence and citizenship in the state of incorporation, 'dummy' incorporators can be used and are deemed valid.
The corporation, having a distinct legal entity of its own, assumes both the residence and the citizenship of the state of its incorporation; and the county wherein its principal place of business is located is the domicile of the corporation. This is true unless the spirit or the terms of the statute using the terms 'residence' or 'domicile' or 'citizen' render it inapplicable to corporations. (Footnotes omitted.)

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Since there is no indication that the spirit or terms of the Private Employment Agency statntes cause same to be inapplicable to corporations, it is my unofficial opinion that a corporation must have been a resident of Georgia for two years immediately preceding the time that it makes application for a license to operate a private employment agency in Georgia. Since Georgia does not place any restrictions on the residency of incorporators, directors, stockholders, or officers of a corporation, it is my unofficial opinion that the residence of such incorporators, directors, stockholders or officers is immaterial in determining whether a corporation meets the residency requirements necessary to obtain a license to operate a private employment ~genc.y in Georgia.
Thus, in conclusion, a Georgia Corporation having been incorporated for at least two years in Georgia at the time of the making of an application for a license to operate a private employment agency would meet the residency requirements without regard to the residency of the incorporators, stockholders, officers or directors. A corporation incorporated elsewhere would thus not meet the residency requirements since such a corporation would be a resident of the state of its incorporation.
In your letter, you also discussed the requirement that an applicant for a license to operate a private employment agency must have " ... at least two years experience as a placement counsellor." (Ga. Code Ann. 84-4102[b]). Furthermore, in your letter, you indicate that it is the opinion of the Attorney General that the majority stockholder must meet this experience requirement. This office has not issued an opinion, either official or unofficial, on this question. This matter has been discussed with the Assistant Commissioner of Labor, but no opinion was given that it would be necessary for the majority stockholder to meet the experience requirement. The Assistant Commissioner of Labor was informed that this question directs itself to the promulgation of rules and regulations by the Commissioner of Labor so as to enable him to carry out his duties as the Administrator of the Georgia statutes relating to Private Employment Agencies. See Ga. Code Ann. 84-4101 to 844103 and 3A-101 to 3A-122 (Supp. 1966).
In this letter, I have referred to the fact that no opinion has been given to the Commissioner of Labor, either official or

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unofficial, in regard to these matters. An official opmwn is an opinion of the Attorney General given to the Governor or the head of a State Department pursuant to request from such an official inquiring as to proper procedure for him to follow in carrying out his official duties.
An unofficial opinion is given by a person in this office to any person making an inquiry concerning legal matters and is merely an expression of that person's opinion and as such is neither binding on this office nor anyone else.

OPINION 68-249 (Unofficial)

June 18, 1968

This is in reply to your letter concerning the taxability of feed additives.

I assume by "feed additives" you have reference to medications that are frequently added to feed for livestock and poultry. I further assume, by your query concerning the taxability of such additives, you have reference to the question of whether or not sales of such items are exempt from taxation under the provisions of the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. Code Ann. Ch. 92-34a, as amended.

Since the Act does not contain an exemption covering the retail sale of medications-whether intended for use by animals or human beings- I am of the opinion that the purchase of such additives by a farmer, who then mixes them with poultry or livestock feed for ease of administration, would not be exempt. The feed-for-livestock-and-poultry exemption, Ga. Code Ann. 92-3403a(c)(2)(b), would not be applicable since the additives would not be a part of the feed at the time of its sale to the farmer.

However, if you have in mind a situation where a feed manufacturer purchases additives to be mixed with feed in the process of manufacturing it, a different result obtains. In such a situation the manufacturer's purchase is tax exempt, because the additives are purchased for use as industrial materials, industrial materials, under the Act, Ga. Code Ann. 92-3403a(c)(2), being items of tangible personal property purchased for future processing, manufacture or conversion into articles of tangible

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personal property for resale where such items become component parts of the finished product. Similarly, when the feed, containing the additives as ingredients, is sold to the consumer, no tax is due, for the feed-for-livestock-and-poultry exemption applies.
From this, it can be seen that it is impossible to generalize on the question of whether or not the sale of feed additives is exempt. In a particular case, the answer must depend on by whom and for what purpose the purchase is made.
OPINION 68--250
June 18, 1968
You request my opinion on whether the Board of Regents may legally obtain leases for food service establishments by negotiation. Several of the institutions of the University System of Georgia lease out the operation of their food service cafeterias and receive as rent a percentage of the gross receipts from the operation of the cafeteria. Because of the difficulty in defining "quality of food" in a bid document, the several institutions have experienced a range in the quality of food from very good to very poor. Hence the Board desires that future leases for food service establishments be obtained by negotiation rather than competitive bid in an effort to raise the quality of food in these institutions.
The Board of Regents, in addition to numerous specified powers, may exercise any power usually granted to such corporation, necessary to its usefulness, which is not in conflict with the Constitution and laws of this State. Ga. Code Ann. 32121. It now becomes incumbent upon us to determine if there is any provision of the Constitution and laws of Georgia which would conflict with the right of the Board of Regents to negotiate such a lease as you describe.
Whenever one encounters a problem on whether competitive bids must be obtained, one must first examine the law governing the Supervisor of Purchases. It is his duty to contract for the purchase, under competitive bidding, of all supplies, materials and equipment required by the State Government. See, Ga. Code Ann. 40-1902. However, nothing will be sold to the State of Georgia under this lease, nor will it be necessary for the State to expend any funds to secure this service. The main benefit received is a service to the faculty and students, a service for which these

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faculty and students alone pay. Therefore, it is my opinion that such a lease is a service contract rather than a purchase of any supplies, materials or equipment and it does not require the approval of the Supervisor of Purchases.
I have been unable to find any provision of the Constitution or laws of Georgia which would conflict with the right of the Board of Regents to obtain leases for food service establishments by negotiation. It is therefore my opinion that they may do so.

OPINION 68-251 (Unofficial)

June 19, 1968

In your letter you refer to Ga. Code Ann. 92-130 and an editorial note following, which note states that -the language originally contained in the Ga. Intangible Tax Act (Ga. Laws 1937-38, Ex. Sess., pp. 155, 162, 163) exempting from the Intangible Tax Act "evidence of debt of the State of Georgia, its public institutions and its municipal corporations and subdivisions and obligations of the United States Government" had been omitted from Ga. Laws 1946, pp. 12, 14 and Ga. Laws 1947, p. 1183. You then ask whether the exemption of these intangibles is provided for in Ga. Code Ann. 92-123, since the instructions contained in the intangible tax return forms state that these intangibles are still exempt.

The language contained in Section 7 of Ga. Laws 1937-38, Ex. Sess., pp. 162, 3 exempting these intangibles from the intangible tax act was neither expressly nor impliedly repealed by either Ga. Laws 1946, p. 12, or Ga. Laws 1947, p. 1183. These acts merely carried into effect Art. VII, Sec. I, Par. IV of the 1945 Constitution of Georgia, and did not change the pre-existing law, although some of the language used in these acts is contained in the above-mentioned Section 7.

In addition the intangible tax act was amended by Ga. Laws 1953, Nov.-Dec. Sess., pp. 378, 381, and in Section l (b) thereof reads as follows:

"The tax imposed by the foregoing [the intangible property tax] shall not apply to any property exempted by Section 7 of the aforesaid Act of the General Assembly of Georgia, approved December 27, 1937 . . . ."

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Accordingly the exemption you refer to is granted in Section 7 of Ga. Laws 1937-38 and Ga. Laws 1953, Nov.-Dec. Sess., pp. 379, 381 and not Ga. Code Ann. 92-123, notwithstanding the erroneous compilation of Ga. Laws 1946, p. 12 and Ga. Laws 1947, p. 1183 by a private publishing company.

OPINION 68-252

June 19, 1968

You request additional information with regard to Opinions 6721 and 67-339 on the subject of reimbursement for utility relocations required by the construction of interstate and limitedaccess highways. You also request specific information in regard to the authority of the State Highway Department of Georgia to control and regulate utilities on public rights-of-way.
As to the first question, the Bureau of Public Roads wants to know if Opinion 67-21 is applicable to utility relocations which were fully performed on or after March 7, 1955, and before January 23, 1967. Further, in the event the answer to this question is in the affirmative, the Bureau wants to know the rights of the State to recover the funds previously expended under contracts for these utility relocations.
After a review of Opinions 67-21 and 67-339 and various other cases and statutes, we feel that the following interpretations as to certain areas of the Official Opinions are proper:
(a) Where all relocation work under an agreement between the Highway Department and the utility company was fully performed by the utility company and paid for by the Highway Department prior to the date of Opinion 67-21, the utility may retain such payment whether or not a portion or all of the adjusted utility facilities were installed on public right-of-way after March 7, 1955.
(b) Where a portion of the relocation work under an agreement between the Highway Department and a utility company was performed by the utility company and paid for by the Highway Department prior to the date of Opinion 6721, the utility may retain such payment whether or not a portion or all of the adjusted utility facilities were installed on public right-of-way after March 7, 1955.
(c) On the other hand, relocation work, whenever

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completed or whenever billed (insofar as it conisted of adjustment of utilities installed on public right-of-way after March 7, 1955), if not actually paid for prior to January 23, 1967, cannot now legally be paid. Any payments made after January 23, 1967, which are in conflict with Opinion 67-21, must be recovered by the State Highway Department of Georgia.
The above interpretations are made in view of the fact that the agreements between the utility companies and the Highway Department entered into before January 23, 1967, were good faith, fully executed, contractual commitments, consonant with prior legal interpretations. Therefore, the State Highway Department should not now seek to collect payments made before January 23, 1967. In view of the interpretations of the law applicable to this situation, we feel that the holdings in (a), (b) and (c) are correct.
In regard to your second question, I am attaching copies of Opinions 66-43 and 66-56.1. These Opinions set forth the rights of utilities to locate on, over or under highway rights-of-way. Additionally, I would point out that utilities not specifically mentioned in these two Opinions are allowed to install facilities within the limits of the right-of-way on all numbered State highways, on the portion of any streets and roads where rightsof-way have been acquired by the State Highway Department, and on all projects of the Georgia Rural Roads Authority, the Georgia State Highway Authority, and the State Toll Bridge Authority by virtue of the "Rules and Regulations for the Control and Protection of State Highway Rights-of- Way," revised August l, 1963, and the Highway Department policy governing utility facility adjustments on construction and maintenance projects which comprise Section III of the "Utility Manual of the State Highway Department."

OPINION 68-253 (Unofficial)

June 19, 1968

In your letter you state that Home Transportation Company, Inc. is engaged in transporting mobile homes or house trailers on their own under-carriage for individual owners and

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manufacturers. Pertaining to this. business you ask the following questions:
I. Does Ga. Code Ann. 92-2903 authorize issuance in the name of Home Transportation Company of license tags to be placed on a mobile home or house trailer being transported from, to or through Georgia?
2. Would Subsection (7) of Ga. Code Ann. 92-2902 provide for a license tag on a house trailer transported in connection with a motor vehicle, truck, or tractor used as a common carrier for hire?
3. Would the definition in Subsection C of Ga. Code Ann. 92-290 I include mobile homes or house trailers in view of the phrase "designed for carrying persons or property" included therein?
Ga. Code Ann. 92-2903 authorizes persons engaged in the business of transporting motor vehicles for others under such motor vehicle's own power to obtain dealers licenses for use on the vehicles being transported. By definition a trailer cannot be transported under its own power, therefore, this Code section would not apply. Your company cannot transport mobile homes with a dealer's license, but must buy a regular tag for a house trailer to use in transporting.
Ga. Code Ann. 92-2901, subsection 7 provides for licensing of house and auto trailers not used as, or in connection with, a motor vehicle, truck or tractor used as a common or contract carrier for hire. Your question answers itself. If a house trailer is used in connection with a motor vehicle used as a common carrier or contract carrie for hire it would not be licensed under the provisions of subsection 7 but under subsection 8 of Ga. Code Ann. 92-2902. That is not, however, the circumstances you describe. The phrase in this Code section, \'used in connection with" means that the trailer itself is used as an instrument in hauling for hire. That is not the situation in your case. In your Company's operation the trailer is not used to haul for hire but is the object which is hauled for hire. Therefore, subsection 7 would be applicable to your Company's operation and trailers which you transport must bear a tag purchased under this Subsection.
Mobile homes are designed for carrying property and are licensed under subsection 7 of Ga. Code Ann. 92-2901.

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OPINION 68-254

June 19, 1968

This is in reply to the request from your office for my official opinion regarding a series of sentences rendered by a superior court of a certain county which raised the following questions:

1. Whether an order which revokes the probationary sentence of the court and sentences the probated prisoner to a definite term of years but also provides that upon the payment of a fine and restitution of a certain amount, the service of the stated period of years would be suspended is a determinate sentence which abrogates the probationary features of the sentence.
2. Whether or not a superior court has the authority to amend a sentence after the term of court has expired at which time the sentence was imposed by amending such sentence nunc pro tunc thereby changing the alternative sentence by decreasing the amount of money required to be paid under the restitution feature of the alternative sentence.

Based on the citations of authority and reasoning hereinafter set forth, it is my official opinion that:
I. When a prisoner is placed on probation, the original sentence is subject to modification by the rendering court at any time during the period of probation. See Opinion 68-165.
2. In the imposition of a sentence if the trial court suspends the service of a part of said sentence, the provision for said suspension shall not have the effect of placing a defendant on probation, thus, once a probated sentence is revoked and said probationer has been sentenced to a definite period of years imprisonment and the remainder of the sentence has been suspended, this sentence does not have the effect of placing the defendant on probation and, therefore, such sentence cannot be revoked. See Opinion 68-165.
3. A court is without power to modify or amend a sentence after the term of rendition has expired. See Opinion 67-185.
4. A superior court cannot modify a sentence by nunc pro tunc order entered in that court at a later term. See Opinion 68-200.

It is my understanding that the factual situation upon which

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these questions are based is as follows: A prisoner "A" who is presently under the custody of the State Board of Corrections entered a plea of guilty in the superior court of a county of this State on March 9, 1967. He was sentenced to seven (7) years on one count and also received a separate sentence of seven (7) years on three other counts. The second sentence was to be served concurrently with the first, however, both sentences were probated on certain conditions at the time they were imposed. On October 5, 1967, for good and sufficient reasons made known to the court, the court revoked these sentences. This revocation order read in part:
"NOW, THEREFORE, it is further ordered and adjudged that said probation be and the same is hereby revoked, and that [name of defendant omitted] be committed to the [name of county omitted] county jail, there to await his delivery to the proper authorities to serve three (3) years of said sentence. It is herein provided, however, that upon payment of the balance of said fine in the amount of $396.00, restitution in the amount of $965.00, and cost of return from Louisiana in the amount of $97.41, making a total of $1,458.41, or upon service of said three (3) years, said sentence shall be suspended."
On May 16, 1968, another order was entered in the superior court of that county. This order was captioned "Modifying and Amending Revoked Probation" and read in part:
"NOW, THEREFORE, upon further consideration it is herein provided that upon payment of balance of fine in the amount of $396.00, cost of returning said [name of defendant omitted] from Louisiana in the amount of $97.41, and $106.09 toward balance of restitution, a total of $600.00 said [name of defendant omitted] shall be released and reinstated on probation under the terms of the original order of Probation dated March 9, 1967, so that he can pay balance of restitution in the amount of $858.41 through the Adult Probation Department at a rate to be determined."
Under the provisions of Ga. Code Ann. 27-2502 the trial judge imposing a sentence rendered by the jury is granted the power and authority to suspend or probate said sentence under such rules and regulations as he thinks proper. The trial judge is also empowered with the right and authority to revoke said

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suspension or probation when defendant has violated any of the rules and regulations prescribed by the court. Also, Ga. Code Ann. 27-2709 provides:
"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 term of time originally prescribed for the probated sentence to run."
Based on the above citations of authority the trial court of this county retained jurisdiction over the defendant when it entered its order on March 9, 1967, probating the concurrent sentences of seven (7) years. Thus, the court had the power and authority on October 5, 1967, to revoke these probationary sentences.
However, this revocation order established a sentence of a definite period of time. This new sentence was, in effect, an alternative sentence. The trial court in the imposition of this sentence provided that the defendant was to serve a definite period of years, however, in the alternative it provided that the payment of sums of money set forth would operate as a discharge from the prison sentence. This method of sentencing is in accord with the Supreme Court's directions to superior courts concerning alternative sentences:
" ... [I]t is preferable to so word the sentence that the payment of a money sentence shall operate as a discharge from a jail or chain gang sentence, rather than that a jail or chain gang sentence shall become operative because of failure to pay a named sum of money." See Dixon, Sheriff v. Baughn, 149 Ga. 86, 87 (1919).
Ga. Code Ann. 27-2714 provides: "In all criminal cases in which the defendant shall be found guilty, or in which a plea of guilty or plea of nolo contendere shall be entered, and the trial judge after imposing sentence shall further provide that the execution of such sentence shall be suspended, such provision shall not have the effect of placing such defendant on probation as provided in this law." (Emphasis added.)

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The editorial note following this code section states: "Acts 1965, p. 413, inserted the provision that suspension of a sentence does not place the offender on probation. This was a reversal of a previous policy . . . ."
The Supreme Court of Georgia has stated that statutes providing for the suspension of a sentence or the probation of a sentence must be strictly followed. Cross v. Huff, 208 Ga. 392, 396 ( 1951 ). Therefore, under the provisions of Ga. Code Ann. 27-2714 when the superior court revoked the original probationary sentences and sentenced this defendant to a definite period of years or in the alternative provided that he pay a certain sum of money as restitution and suspended the remainder of the sentence the court in effect eliminated all probationary elements of the original sentence. Accord Opinion 68-165.
The revocation order entered by the court on October 5, 1967, fits our appellate courts' definition of an alternative sentence. See Favors v. State, 95 Ga. App. 318 (1957); Bray v. State, 96 Ga. App. 881 (1958); Cross v. Huj]; supra.
"Had the alleged probation sentence contained even the admonition to 'go and sin no more' (John 8: II), the sentence might be subject to construction . . . ." Cross v. Hujj; supra.
The second revocation order dated May 16, 1968, was entered in a different term of court. Therefore, since Ga. Code Ann. 272714 provides that the imposition of a suspended sentence shall not have the effect of placing the defendant on probation and since the appellate courts of Georgia have held that a trial court is without power to modify or amend a sentence after the term of rendition has expired, then it is to be concluded that this attempted modification by the order dated May 16, 1968, was null and void and that the court was without power and authority to change the sentence rendered in a former term of court. See Long v. Stanley, 200 Ga. 239, 241 (1945); Shaw v. Benton, 148 Ga. 589 (I) ( 1918); A uldridge v. Womble, 157 Ga. 64 ( 1923); Stockton v. State, 70 Ga. App. 17 (1943). Furthermore, the Court of Appeals of Georgia in the case of Phillips v. State, 95 Ga. App. 277 (1957), held that the Probation Act of 1956, Ga. Laws 1956, p. 27, as amended, does not authorize the court at a subsequent term to add to the sentence a provision for probation where he made no provision relating thereto in the first instance.

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Hence, it is my official opinion that due to the fact that the effect of the nunc pro tunc order of May 16, 1968, was not merely to explain the intention of the court in imposing its original sentence but actually modified and amended its original sentence by abrogating the provisions for the service of three (3) years and changing the alternative method of payment by altering the amounts to be paid, then, this action of the court does violence to the rule established by the appellate courts of this State in the above-cited cases. Therefore, when the superior court passed this order modifying and changing its original sentence, such order was void and the court was without jurisdiction to alter the sentence originally imposed.
It is submitted that the law is clear and unambiguous in matters of this type. In a former opinion rendered by this Department, Opinion 68-200, it was stated:
"It is obvious that if the judges of the superior courts desire authority to amend sentences after the term of court in which sentences were imposed, they should secure such authority through an act passed by the General Assembly. Under our present system in this State, plenary power is granted to the State Board of Pardons and Paroles, and it is felt by this writer that this is the proper authority to modify a sentence under circumstances such as those enumerated herein."

OPINION 68-255 (Unofficial)

June 19, 1968

This responds to your letter of June 14, 1968, requesting an unofficial opinion as to whether or not the Employees' Retirement System is authorized to send to State Agency Credit Unions 'refund of contribution checks payable to members of the System. You state that certain of such credit unions cause members to execute a blank refund application as a prerequisite to the obtaining of a loan and that in several instances the mailing address indicated on the refund form, to which the refund check should be mailed, has been changed, by persons unknown who are not employees of the System, from the member's address to the address of the credit union.

You indicate that the practice is for the credit union to retain possession of the check, cause the member to endorse the check,

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and then apply the check in satisfaction of the outstanding indebtedness of the member to the credit union.
OT-i i~ION
The Employees' Retirement System should not send to State Agency Credit Unions refund of contribution checks payable to members.
DISCUSSION
Section 9 of the Act establishing the Employees' Retirement System of Georgia provides, in part:
"The right to . . . the returns of contributions . . . shall be unassignable except as in this Act specifically otherwise provided." Ga. Laws 1949, pp. 138, 160, Ga. Code Ann. 40-2512.
A careful reading of the Act as amended will reveal that nowhere therein is it specifically provided that such rights are assignable. Hence, they are not assignable.
The narrow question presented is whether an agreement between the member and a credit union pursuant to which the credit union is permitted to receive and maintain custody or possession of a refund check constitutes an assignment within the meaning of Section 9 of the Act. I will not suggest for one moment that two attorneys, fortified by copious citations ofrelevant legal authority, could not arrive at completely dissimilar answers to that question. However, it is my person.al view that the proper meaning of the word "unassignable" is to be determined by reference to two rather simple legal principles.
First, it has been held that a purpose of a statute which makes claims against public boards unassignable is to forbid anyone who is a stranger to the transaction from coming between the member and the board prior to the complete processing of the claim. Lindberg v. Humphrey, 289 Fed. 901 (App. D.C., 1923). Such statutes do not control the member's disposition of his refund check after it has been received by him directly from the System. 40 Am. Jur. Pensions, 43, pp. 995-96, 70 C.J.S., Pensions, 9, pp. 432-33.
Second, statutes providing retirement benefits for public employees are entitled to liberal construction in favor of the

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employee. City of Macon v. Herrington, 198 Ga. 576, 589 (1944), Burks v. Board of Trustees, 214 Ga. 251, 254 (1958). Looking, as we must, to the general scheme and purpose of Section 9, Griffin v. Bass, 96 Ga. App. 892, 896 (1958), it should be rather apparent that the General Assembly has sought to assure that a member's rights and benefits will reach him undiminished and undiluted by the claims of his creditors. To permit a credit union to secure against a member's refund check the most ancient of all security devices-possession or custody-would be to thwart the legislative purpose so clearly expressed in Section 9. Any agreement, express or implied, between the member and the credit union purporting to give to the credit union such right of possession or custody is unenforceable on the ground that it contravenes the public policy of this State as set forth in Section 9. Scott v. Hall, 56 App. 467, 475 (1937), 17 C.J.S. Contracts, 201.
Such unenforceable contracts confer no right or obligation upon the Employees' Retirement System to deliver such refund checks to a credit union.

OPINION 68-256

June 19, 1968

William L. Griffin, of the United States Department of Commerce Coast and Geodetic Survey, Rockville, Maryland 20852, has made recent inquiry of this office regarding the location of Georgia's southern boundary in the Territorial Sea.

Mr. Griffin is a recognized authority on Federal and State boundaries along the continental shelf and is currently preparing a treatise delimiting these areas in the territorial seas of the Atlantic Coastal States. Mr. Griffin's forthcoming paper should resolve many of Mr. Dover's questions.

Since boundary litigation between Georgia and Florida has been concerned almost exclusively with the lands west of Ellicott's Mound to the mouth of the Flint River on the Chattahoochee, it would appear there are no controlling precedents regarding the boundary along the course of the St. Mary's, and applicable principles of international law will undoubtedly be dispositive of the problem.

Any compact between Georgia and her sister State on such

349
subject would require the consent of Congress before it could become effective, but such a solution might well be preferable to invocation of the original jurisdiction of the United States Supreme Court for demarcation of our common boundary.

OPINION 68-257

June 19, 1968

This is in reply to your recent request for my opinion as to the relationship between the mandatory power of license revocation reposed by law in the Director of the Department of Public Safety and the discretionary power of license revocation reposed by law in the trial judge in cases involving the offense of driving under the influence of intoxicating liquors or drugs. Additionally, you request my opinion on the related question of whether or not a trial judge who has ordered reinstatement of an operator's license, which he revoked pursuant to his discretionary power of revocation, can order the Director of the Department of Public Safety to reinstate the same operator's license which the Director has revoked pursuant to his mandatory power of revocation, particularly where the operator in question has not complied with the pertinent provisions of the law relating to fiscal responsibility.
It is my understanding that a licensed motorist entered a plea of guilty to the offense of driving under the influence of intoxicating liquors in a State court of competent jurisdiction. As punishment for this offense, the trial court, on December 15, 1967, ordered the offending motorist's license revoked for a period of twelve months, and at the same time, ordered the license reinstated for business purposes only. The Director of Public Safety, in accordance with the applicable provisions of the Motor Vehicle Safety Responsibility Act, as amended, revoked the license of the offending motorist. As of the date of your request for my opinion, the offending motorist had not complied with the pertinent provisions of the Motor Vehicle Safety Responsibility Act which condition the power of the Department of Public Safety to reinstate the license in question.
The penalty for driving under the influence in violation of the law unofficially codified as Ga. Code Ann. 68-1625 is set out in Ga. Laws 1956, pp.674, 675-76, (Ga. Code Ann. 68-9927). In addition to fines and imprisonment it provides that "upon a third and subsequent conviction when the two last prior

350
convictions have occurred within the four years immediately preceding such third conviction the offending motorist's driver's license shall be revoked for two years." An examination of the driver's record forwarded under cover of your request fails to establish two convictions during the period of December 16, 1963, through December 15, 1967. In addition to the above provision relating to mandatory revocation for the third and subsequent conviction, within the prescribed period of time, the convicting court is empowered in its discretion to revoke an offender's license for a period not to exceed two.years. In such cases the court has "the power to reinstate said license at any time."
The Director of Public Safety is required by Ga. Laws 1964, pp. 225, 228-30 (Ga. Code Ann. 92A-608) to revoke for a period of one year the operator's license of any operator convicted of driving under the influence of intoxicating liquors. Ga. Laws 1964, pp. 225, 228-30. The caption of the enactment recites that it was the legislative intention to "change the period of time for which the Director must revoke an operator's license for certain offenses. . . ." While this caption of an act is not a part of the act so as to share with the act the force and effect of law, it may always be examined where the act itself is doubtful for the purpose of finding the legislative intent. Moore v. Robinson, 206 Ga. 27 (1949). It would appear to clearly follow that the caption would be equally effective in reinforcing the clear language of the 1964 statute. In interpreting a statute, the courts are required to give the words employed in the statute their ordinary significance. Ga. Code Ann. 102-102. A statute should be read according to the natual and most obvious import of the language. Resort to subtle or forced constructions for the purpose of either limiting or extending the statutes' operation is to be avoided. Thompson v. Eastern Air Lines, 200 Ga. 216 (1946). As the language of the 1964 act is clear, the doctrine relating to the construction of statutes in pari materia is inapplicable. Oxford v. Carter, 216 Ga. 821 (1961); Ryan v. Chatham County Commissioners, 203 Ga. 730 (1948).
The 1956 statute relating to court-imposed revocations does not constitute a limitation on the 1964 statute under which your department acts in revoking the license of an offender. Clark v. Taylor, 108 Ga. App. 688 (1963). It was not the legislative intention to give the trial court exclusive, preemptive jurisdiction over the offender's driver's license. Murphy v. Dominy, 211 Ga.

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70 (1954). Therefore, I am of the opinion that the Director of Public Safety is required to revoke the license of a driver who either is convicted of, pleads guilty to, or forfeits bond while charged .with any of the offenses enumerated in the 1964 statute unofficially codified as Ga. Code Ann. 92A-608 without regard to any court-imposed punishment or lack thereof which might have been entered pursuant to Ga. Laws 1956, pp. 674, 675-76.
The power of the trial court relating to revocations of license as punishment for the offense defined in Ga. Code Ann. 68-9927 has not been repealed by Ga. Code Ann. 92A-608. Repeals by implication are not favored and there must be a positive repugnancy between provisions of the new and the old law to repeal the old law by implication. Strickland v. Peacock, 209 Ga. 773 (1953). The non-specific repealer attached to the 1964 enactment goes no further. The two statutes can be harmonized and to the extent, if any that the subsequent act renders the earlier ambiguous, the doctrine of construction in pari materia would be applicable. Oxford v. Carter, supra. In such a case the later expression of the General Assembly takes precedence. Clark v. Taylor, supra.
For a first or second conviction, guilty plea, or forfeiture upon the offense of driving under the influence, the Director of Public Safety must revoke the offender's license for a period of one year, and the trial court may revoke the offender's license for a period not to exceed two years. The reinstatement power of the Director under Ga. Code Ann. 92A-608 is limited to the mandatory revocations made thereunder by the Director. "The Director may . . . reinstate the license of an operator whose license has been revoked under the above provisions only . . . ." Ga. Code Ann. 92A-608.
The reinstatement power of the court under Ga. Code Ann. 68-9927 is applicable only to the discretionary revocations ordered by the court. "The court in its discretion shall have the power to revoke, for any period of time not exceeding two years, the license of any person convicted under the section for the first or second offenses, and shall have the power to reinstate said license at any time . . . ." Ga. Code Ann. 68-9927 (Emphasis added). Therefore, I am of the opinion that the trial court does not have the power to order the Director to reinstate a license revoked by the Director pursuant to Ga. Code Ann. 92A-608

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absent a showmg of compliance by the licensee with the pertinent provisions of Ga. Code Ann. 92A-608.

OPINION 68-258

June 20, 1968

This is in reply to your recent request for my optmon on whether or not your department should continue to enforce the prohibition against operation by Georgia residents of vehicles licensed in other States.
The State Patrol is required by law to enforce the required licensing of motor vehicles. Ga. Laws 1937, pp. 322, 339; Ga. Code Ann. 92A-247. The law providing for the registration and licensing in Georgia of all motor vehicles operated in the State is codified as Ga. Code Ann. 68-201. There is a limited and qualified exemption in favor of non-resident owners of motor vehicles. Ga. Code Ann. 68-221. Ga. Code Ann. 68-221 provides further that "no resident shall be allowed to operate a motor vehicle within this State under a license issued by another State." The effect of this provision is to render unlawful the operation by a Georgia resident of a motor vehicle licensed in another State, even though the vehicle may be owned by a nonresident.

It is my opinion that the operation in the State of Georgia by a resident of the State of Georgia of a motor vehicle owned by said operator and licensed in another State is a violation of Ga. Code Ann. 68-201. Further, it is my opinion that the operation in the State of Georgia by a Georgia resident of a motor vehicle owned by another Georgia resident but registered in a State other tha Georgia constitutes a violation of the Ga. Code Ann. 68-20 I. Davis v. The State, 163 Ga. 247 (1926). Additionally, it is my opinion that the operation by a Georgia resident of a vehicle owned by a non-resident and registered in another State is violative of Ga. Code Ann. 68-221. Violations of Ga. Code Ann. 68-201 are misdemeanors. Ga. Code Ann. 68-9901. The violation of Ga. Code Ann. 68-221 constitutes a misdemeanor. Ga. Code Ann. 68-9908.

0 PINI0 N 68-259 (Unofficial)

353 June 20, 1968

It is my understanding that you are concerned about .Section 4(b) of the Driver Training School License Act of 1968. I regret to inform you that in my opinion the Act makes no provision for the waiving of the educational requirement set forth in Section 4(b). Section 5(a) authorizes the Department of Public Safety to issue license certificates only when the Department is satisfied that the applicant has met the qualifications set forth in the Act. The Act makes no provision for the issuance of an interim license to persons endeavoring to qualify under Section 4(b).

OPINION 68-260

June 20, 1968

This is in reply to your letter of June 18, 1968, asking my opinion as to when a person who will attain the age of eighteen by the forthcoming general primary or election may register to vote in such elections.

A person not yet eighteen may register to vote at any time the offices of the Registrar are open so long as he will attain eighteen years of age within six months after the day of registration. Ga. Code Ann. 34-602. The last day any person may register for the general primary to be held in 1968 is July 22, 1968. Ga. Code Ann. 34-625, 34-619 and 34-1402(c). The last day any person may register to vote in the general election to be held in 1968 is September 16, 1968. Ga. Code Ann. 34-611 and 34-1402(c). Accordingly, a person who will be eighteen years of age by the date of the primary, September II, 1968, and who wishes to vote in such primary, may register to vote at any time within six months of his eighteenth birthday but no later than July 22, 1968. Similarly, a person who will be eighteen by the date of the general election, November 5, 1968, and who wishes to vote in such election, may register to vote at any time within six months of his eighteenth birthday but no later than September 16, 1968.

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OPINION 68-261 (Unofficial)

June 2 I, 1968

In your letter you requested our unofficial opinion as to whether a political party conducting a primary may open only one polling place in the county, for example, the county courthouse, where the county has eighteen election districts.

Prior to 1968, Ga. Code Ann. 34-629(b) provided that in any "election" (not primary) held in an election district in which no question was printed on the ballot and no candidate was opposed by any candidate whose name was printed on the ballot, then that polling place should not be opened. That Code section has been repealed.

Ga. Code Ann. 34-629 now provides that all persons whose names appear on the list of electors placed in the possession of the managers in each election district "shall be allowed" to deposit their ballots at the election district in which they are registered, except that in counties having a population of less than 40,000 according to the 1960 or any future census, an elector may vote at the district containing the county courthouse.

The prerogative in counties have a population of less than 40,000 lies with the voters and not with the party.

The Georgia Election Code contemplates and provides that where a political party holds a primary, all polling places will be open. See Ga. Code Ann. 34-629, supra, Ga. Code Ann. 3450 I provides that: "All primaries and elections shall be conducted in each election district by a board. . . ."

Ga. Code Ann. 34-1007(a) provides that "A political party, in nominating a candidate for public office in a primary, shall use and provide poll officers for each polling place in each election district in the area wherein the electors reside who shall elect the person to fill such public office in the next election therefor. . . ."
Ga. Code Ann. 34-130 I provides that the superintendent of the primary (the county executive committee of the political party holding the primary [Ga. Code Ann. 34-103(ac)]) shall furnish blank forms of oaths, affidavits, tally sheets, return sheets, and other forms and supplies "required by this Code for use in each election district in the county. . . ."

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Ga. Code Ann. 34-l302(b) provides that the registrars shall furnish one voter's certificate binder "for each election district for each primary...."
Ga. Code Ann. 34-1310(c) provides as follows:
"Except as provided in Sections 34-629 and 34-1407, no person shall vote at any primary or election at any polling place outside the election district in which he resides. . . ."
Ga. Code Ann. 34-629 has been referred to above. Ga. Code Ann. 34-1407 relates to absentee voting.
Thus, it is my unofficial opinion that where a political party holds a primary in a county, the polling place in each and every election district must be opened.

OPINION 68-262 (Unofficial)

June 21, 1968

You requested an opinion relative to whether a person who has previously served in the position of County Tax Assessor is in any way disqualified from running for other county office, particularly the office of County Commissioner. As I understand it, said person is not presently serving on the Board of Tax Assessors.

Ga. Code Ann. 92-6907, provides that "the members of the Board of Tax Assessors shall be ineligible to hold any State, county or municipal office during the time they hold their offices, but they may be reappointed to succeed themselves as members of said Board."

It appears that the foregoing Code section makes members of the Board of Tax Assessors ineligible to hold any county office only "during the time they hold their offices [of Tax Assessor]." Therefore, it is my opinion that, if the person in question is no longer a member of the Board of Tax Assessors, he would not be ineligible because of his prior service on the Board of Tax Assessors to serve in a "county office."

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OPINION 68-263 (Unofficial)

June 21, 1968

You request an opinion relative to the legality or the propriety of your offering yourself as a partisan candidate for public office while in the employ of the State.
I am not aware of any constitutional or statutory provision which makes it illegal for an employee of an educational institution whicQ. is supported in whole or in part by the State to run for public office as the candidate of a particular political party. Therefore, it is my opinion that there is nothing illegal in such activity. With reference to the propriety of the undertaking, I would think that this is a personal matter and amounts to a value judgment about which this office should not express an opinion.

OPINION 68-264 (Unofficial)

June21,1968

In response to your letter the proposed checkless payroll plan is conditionally acceptable under applicable State law. Georgia law provides in part that every corporation employing skilled or unskilled wage workers engaged in mechanical or clerical labor, including all employees, except officials, superintendents, or other heads or subheads of departments, who may be employed by the month or year at stipulated salaries, shall make payment in checks or lawful money of the United States to said employees, laborers and workers or their authorized representatives. Ga. Code Ann. 66-102.

Your payroll plan does not require payment by check or lawful money to the employee himself; therefore, to satisfy said law, each employee who under the statute is entitled to receive payment by check or lawful money of the United States, must designate the bank where he will have his account as his authorized representative to receive his salary. Your payment to each bank must be by check or lawful money in accordance with said law.

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OPINION 68-265 (Unofficial)

June 24, 1968

In your letter you asked a number of questions concerning arbitration under Ga. Code Ann. 92-6912. Your questions and answers thereto follow:
I. The arbitrators must be "freeholders". Does this mean that the arbitrators must own real estate free and clear of any liens in order to qualify as an arbitrator?

A freeholder is an owner of either legal or equitable title to real estate. Daniels v. Fossas, 152 Wash. 516, 278 P. 412; Dean v. State, 74 Fla. 277, 77 So. 107; Black's Law Dictionary, (4th Ed. 1951), p. 793. Therefore, the existence of a lien against property would not deprive the owner of the status of a freeholder and such owner could act as arbitrator under this statute.

2. Would it be objectionable, and give right to file a complaint in the Superior Court, to appoint as an arbitrator, the husband of the chief stockholder of a corporation? Or, would it be subject to objection if a husband is appointed as an arbitrator of his wife's property?

The case of Vestel v. Edwards, 143 Ga. 368 (1915), held that the Board of Assessors could not legally appoint as arbitrator the brother of the Chairman of the Board of Tax Assessors. The Court said that although the tax assessors were merely nominal parties and without personal interest in the matter this rule results from the patent unfairness and illegality should the taxpayer appoint as his arbitrator a near relative.

The Court stated in the Vestel case at page 375 that,

"The [Act] contemplates that the arbitration provided for shall be conducted in a manner which shall be fair and just to each party. The policy of the law is to permit no one to decide his own case, or to decide the case of those within the prohibited degrees of kinship."

It is therefore my opinion that the husband of a taxpayer or the husband of the chief stockholder of a corporation taxpayer could not be legally appointed to act as an arbitrator for the taxpayer.

3. Does the word ..hearing" in the law mean that the arbitrators must hold a hearing which enables the tax

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assessors to present evidence of their opmwn of values as well as giving the opportunity to the property owners to present witness as to the value of the tax payers' property? Are there any administrative rules in the State of Georgia for the conduct of such a hearing by the arbitrators?
The arbitrators must give the taxpayer and tax assessors a hearing. McGregor v. Hogan, 263 U.S. 233, 68 L. Ed. 282, Ogletree v. Woodward, 150 Ga. 691, 696 (1920); Stewart Co. v. Thompson, 224 Ga. 303 (1968).
A "hearing" necessarily implies the right to be heard and present evidence on the issues involved. See F. Cooper, State Administrative Law, Vol. I, p. 287.
There are no specific rules in the State by which such hearing must be conducted. The Administrative Procedure Act applies only to administrative hearings before State Agencies. The hearing must, however, conform with the standards of due process.
4. Must the hearing of the arbitrators be held in a public place or can they go to a private home, street corner, etc.?
The hearing need not be held in open court.
5. If the appointment of an arbitrator appears irregular (such as the appointment of a blood relative), or the arbitrators do not hold a hearing, or there are other reasons to object to the procedure of arbitration, is the remedy suggested to be an injunction against the tax receiver to enjoin the receiver from accepting the return of the arbitrators?
An injunction would be proper to test the legality of the arbitration. Vestel v. Edwards, supra.
6. Is it a lawful expense for the County to pay a professional fee to the arbitrator appointed by the County to the third party appointed? Or, to the arbitrator appointed by the taxpayer?
No provision for the compensation of arbitrators can be found in Ga. Code Ann. 92-6912 or any cognate statutes. Arbitration is however a part of the assessing process and any costs of arbitration for which the County is responsible would be a

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legitimate expenditure as costs of administration. To have arbitration the arbitrators must be compensated. The question then is what is the proper rule for compensation when a method is not specified in the statute.
In the case of Wade v. Powell, 31 Ga. I ( 1860) the court held that fees for arbitrators should be settled under the provisions for statutory arbitration and award even if the arbitration was not brought under that statute. See Ga. Code Ann. Ch. 7-2. Ga. Code Ann. 7-223 provides that the arbitrators shall have such compensation as may be agreed upon by themselves and the parties and such amount shall be paid equally by the parties involved.
Therefore, the county would not compensate any individual arbitrator but would pay its share of compensation of all arbitrators.
7. Are there any limits to the evidence that can be presented to the arbitrators by the tax assessors or the taxpayers?
The arbitrators should hear all relevant and material evidence.
8. Are the arbitrators to determine the reasonable market value of a particular piece of property being arbitrated (to be reduced by the percentage of tax assessment), or are they to consider only an equalized value comparable to like or unlike properties being assessed for ad valorem taxes?
For the answer to this question I refer you to the case of Whitehead v. Henson, 223 Ga. 329 (1967).

OPINION 68-266

June 24, 1968

This is in response to your letter requesting my official opinion as to whether or not a local board of education may satisfy the requirements of Ga. Code Ann. 32-820 by purchasing a schedule bond covering more than one of its school principals. You make reference to an unofficial opinion of the Attorney General ruling that a blanket bond is insufficient, and individual bonds are necessary, to comply with that section. Ops. Att'y. Gen. 1959, p. 112. A specimen copy of a schedule bond was enclosed with your letter.

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OPINION

Either individual or schedule bonds are sufficient to comply with Ga. Code Ann. 32-820 if executed by the school principal or principals to which they relate. However, the schedule bond enclosed with your letter is insufficient to comply with that section because it is not expressly conditioned upon faithful and true accounting for all public and other funds and all property coming into such principals' custody, control, care or possession. It is debatable whether or not the bonding of school principals may be accomplished by the execution of "blanket bonds" which are not signed by the school principals.

DISCUSSION

The relevant statutory provision is as follows:

"Any person now employed as principal and any person upon entering into employment as principal of any public school of this State shall execute a bond in an amount fixed by the local board of education having jurisdiction over such school. Said bond shall be made payable to such local board of education and shall be conditioned upon faithful and true accounting for all public and other funds and all property coming into such principal's custody control, care or possession. The premiums of such bonds shall be paid by the local board of education out of the county educational fund." Ga. Code Ann. 32-820, Ga. Laws 1959, p. 159.

The language of this section clearly requires that each school principal individually execute the bond. It does not, however, specifically require that separate bonds be secured for each such principal nor, in my opinion, is such a requirement fairly to be implied from the section as awhole.

I call your attention to the fact that the specimen schedule bond enclosed with your letter is conditioned as follows:

" . . . if each of the said officials and employees shall for

the term beginning

and ending

faithfully

perform the duties of his office as required by Law, pursuant

to Section 89-4, Georgia Codes, then this obligation shall be

void."

whereas Ga. Code Ann. 32-820 requires that bond of public

school principals be conditioned as follows:

...

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. upon faithful and true accounting for all public and other funds and all property coming into such principal's custody, control, care of possession."
Although the specimen bond would be saved from total voidness by Ga. Code Ann. 89-419 if it were executed in an attempt to comply with Ga. Code Ann. 32-820, it would appear to me that caution would dictate that bonds for public school principals be expressly conditioned as required by the latter section.
Your attention is invited to the following provision enacted by the General Assembly in 1963:
"The several counties, municipalities, and other political subdivisions of this State, including independent school boards, are authorized to purchase blanket bonds which cover any two or more officers, officials, agents, and any other employees of such political subdivisions where they are required by law to be bonded." Ga. Code Ann. 89-429, Ga. Laws 1963, p. 480.
The meaning of that section is debatable. It is arguable that the General Assembly has authorized local boards of education to cover their school principals by "blanket bonds," that is, instruments which neither are signed individually by, nor identify by name, the school principals to which they relate. The argument would be that Ga. Code Ann. 89-429 would control over Ga. Code Ann. 32-820 because Ga. Code Ann. 89-429 is the last declaration of the legislature on this subject. Nash v. National Preferred Life Ins. Co., 222 Ga. 14, 21 (1966). However, the courts of this State do not favor the doctrine of repeal by implication and would declare that Ga. Code Ann. 89-429 repealed Ga. Code Ann. 32-810 only to the extent that there is inconsistency between the two sections. Nash v. National Preferred Life Ins. Co., supra. Thus, one could argue that the only effect of Ga. Code Ann. 89-429 is to permit official bonds which relate to more than one school principal, provided they are signed by each school principal to which they relate, rather than to repeal the requirement that each school principal execute the instrument.
Which approach a court might adopt is purely a matter of conjecture. However, irrespective of whether or not a "blanket bond" is sufficient in law for the purpose of bonding public school

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principals, it is quite clear that schedule bonds which are signed by each school principal to which they relate are in law sufficient for that purpose. To whatever extent the unofficial opinion dated September 16, 1959, Ops. Att'y. Gen. 1959, p. 112, is in conflict with this ruling it hereby is disapproved and rescinded.

OPINION 68-267

June 25, 1968

This is in reply to your request for my official opinion regarding the validity of a proposed contract between the State of Georgia and Northwestern University for a "Traffic Records Study" which is to be entered pursuant to the provisions of the National Highway Safety Act of 1966 and Ga. Laws 1967, p. 542.

It is my official opinion that this proposed contract raises questions regarding the definiteness and certainty as to several provisions and therefore it is recommended that consideration be given to possible revision.

This proposed contract is between the State of Georgia and Northwestern University. Northwestern University agrees to initiate a study and prepare a report on what is needed to develop and implement a fully coordinated statewide traffic records system which will as a minimum, satisfy all the requirements specified by the U.S. Secretary of Transportation and Highway Safety. The State of Georgia agrees to pay as a consideration of this activity, "a sum not-to-exceed $75,600.00." This consideration is restated again in Article Ill of the contract in the same terms, "not-to-exceed the sum of $75,600.00," and in Article V of the contract, "actual cost which in no event shall exceed the cost quoted ($75,600.00)." Finally, in Article VI of the proposed contract there is provided, "It is estimated that the project will be completed within 12 calendar months after initiation."

It is to these two points of the contract that the question of definiteness and certainty arises, in other words, the contract does not provide for a definite amount of money to be paid, and furthermore, the contract of employment is for an indefinite period. First, in regard to the question of consideration the appellate courts of Georgia have held that a contract of employment possesses the necessary requisites when it designates the employee's place of employment, the period for which he is

363
employed, the nature of the services which he is to render and the compensation he is to receive. See Me Murray v. Bateman, 221 Ga. 240 (2) (1965). However, a contract of employment which does not specify its duration, the position to be filled, nor the wages, is void for uncertainty. See 17 C.J.S. 365, 36; Weill v. Brown, 197 Ga. 328,332 (1944).
"Where there is a contract for the performance of services by one party, in consideration of the payment of money therefor, by other party, the nature and character of the services to be performed and the amount to be paid therefor must be of such character that it can be ascertained what services are to be performed, and what sum of money is to be paid therefore." Weill v. Brown, supra, at p. 333; Mosteller v. Mashburn, 64 Ga. App. 92, 96 (1940). "In a contract of employment the compensation to be paid is a material part, and until the party has agreed upon a definite amount to be paid, the contract is incomplete; and until each party has consented to the material parts of the contract, either party has a right to withdraw therefrom." Weill v. Brown, supra, at p. 333; Pita v. Whitney, 190 Ga. 810 (1941 ).
It is submitted that this proposed contract does not provide for a definite sum of money to be paid by the State in consideration for the services to be performed by Northwestern University. Whenever the question of consideration is mentioned in the proposed contract, it is to be noted that the amount is qualified by the phrases "not-to-exceed" or "in no event shall exceed" followed by a statement of the amount of money. The phrase "not-to-exceed" has been construed by courts of other jurisdictions; these constructions are compiled in 28A Words and Phrases, p. 457. In one case it was held that the phrase "not-toexceed $2, 182.40" should be given its normal meaning and accordingly the contract price to be paid could not be greater than the main figure. Lyme v. 0/ewine, 67 Dauph. 191. The Georgia courts have not dealt with this particular phrase in relation to a contract case, however, in criminal cases where pursuant to a conviction a defendant was sentenced to a term "not exceeding four years" the court held that this meant "not more than four years." See Arnold v. State, 86 Ga. App. 160 (1952). Hence, based on this interpretation of these particular words, it is to be concluded that the maximum amount to be paid under this contract would be $75,600.00. However, the effect of this interpretation fails to comply with the strict requisites regarding

364
definiteness and certainty as to the amount of consideration as laid down by the appellate courts of Georgia.
A specific comparison of the terms as set forth by this proposed contract and the provisions of the contract in the case of Mosteller v. Mashburn, supra, would result in the conclusion that the Georgia appellate courts would possibly consider this proposed contract as vague and indefinite.
In the Mosteller case there was a promise to pay $4,000 to $5,000. The Supreme Court in this case held that this promise in effect failed to state a definite sum, and, therefore, the promisee was liable only in quantum merit for the services actually performed.
Finally, in regard to the question of specificity and certainty as to the time for completion of the contract, it is to be concluded that the provision as contained in this proposed contract does not meet the requirements for definiteness of time that have been established by appellate cases in Georgia. A promise of another is good consideration, but the promise in each instance must be of such character as to be capable of enforcement against the party making it as otherwise neither party would be bound. Also, it must be sufficiently definite both as to time and subject matter, otherwise the contract is unilateral and not binding. See McMurray v. Bateman, supra. It is recognized that under the general principles of contracts construction time is generally not of the essence. See Ga. Code Ann. 20-704(9). Also, it is recognized that the courts have generally held that where no definite time is stated for the performance of a contract the presumption is that the parties intended the performance would be had within a reasonable time. See Wold v. Arant, 88 Ga. App. 568,571 ( 1953). However, this same line of cases has held that the determination of what is a reasonable time must be decided by a jury, therefore, it is to be concluded that in order to avoid any question regarding the termination period of this contract and to avoid possible loss of time and expense to the State in court proceedings, it is advisable that your office establish a definite termination date for this contract.
Furthermore, it is recognized that due to the nature of the duties to be performed by Northwestern University the question of consideration becomes one of speculation; however, in order to avoid any possibility of question as to a contract entered into by

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the Governor of this State, it is advisable that a definite sum of money be specified and agreed upon.
As to the remaining provisions of this contract one closing observation should be made. In Article V of this proposed contract, a condition precedent is established that this proposed project is not to be initiated until funds are made available to implement the contract by the National Safety Bureau of the U.S. Department of Transportation. Furthermore, in Article VI of this proposed contract, it is reiterated that his project will not be initiated until after the contract has been approved and the traffic institute has received official written notice from the State of Georgia that necessary funds have been authorized. This office is informed that this project will be financed by funds made available through the National Highway Safety Bureau and matching funds provided through the various departments of State government, which are involved in this project. This condition precedent possibly could be re-worded to more effectively effectuate the intentions of both parties.

OPINION 68-268

June 25, 1968

This is in response to your recent request for an opinion as to whether the Georgia Forest Research Council may implement the following recently adopted policy declaration:

"Dissertation Research Grants. The Council may enter into an agreement with a Ph.D. candidate, his major professor and the Dean of his School that will provide a grant to the candidate for a phase of forestry research that would be beneficial to the State of Georgia. Preferably, Council grants would be to candidates at any graduate institution in Georgia, but may be given to candidates at graduate institutions outside of Georgia where such institutions have recognized competence in specialized fields of research not available in Georgia."

Absent specific constitutional authorization, an educational grant by a State agency is generally viewed as a "gift or gratuity" in violation of Art. VII, Sec. I, Par. II, of the Georgia Constitution (Ga. Code Ann. 2-5402). See, e.g., Op. Atty Gen. 1963-June 14, 1965, p. 758.

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While many subparagraphs of Ga. Code Ann. 2-5402 permit educational grants for various specific purposes, only one of these is, in my estimation, applicable to the present situation. Ga. Code Ann. 2-5402(10A) provides:
"The General Assembly is hereby authorized to appropriate funds to any State department or other State ag~ncy for the purpose of being used to obtain funds from the Federal Government for educational loans and other educational purposes and all such State departments and other State agencies shall be authorized to use the funds so appropriated and the funds received from the Federal Government for the purposes authorized and directed by the Federal Government in making such funds available."
Based on the above-quoted constitutional provision, it is my opinion that the Council may make educational grants as proposed in your letter only in those instances where the General Assembly has first appropriated funds to it for use in obtaining Federal funds for scholarships and the combined State and Federal funds are used for purposes authorized by the Federal Government. The issuance of grants under any other circumstances would be unauthorized.

OPINION 68-269

June 26, 1968

This is in reply to your request for my official opinion regarding the interpretation of certain portions of the Implied Consent Bill, Senate Bill No. 120, which was signed into law on March 27, 1968, and which now bears the designation of Act 943 (Ga. Laws 1968, p. 448). For purposes of clarity and expediency each of your questions will be considered separately.

Your first question deals with the provisions of Section 47A, paragraph (a) (Ga. Laws 1968, pp. 448, 452) which read in part:

"The test shall be incidental to a lawful arrest and administered at the direction of a law enforcement officer having reasonable cause to believe such person was driving or operating a motor vehicle upon a public road or highway. while under the influence of intoxicating liquor. . . ."

In regard to the above-cited portion of this bill you have propounded two separate questions. First, you desire an

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interpretation of the term "law enforcement officer" and, in particular, you inquire whether the Legislature by the use of this term delegated to the arresting officer the responsibility of having this test administered or was it tht: Legislature's intention that the arresting officer's responsibility is only to deliver the arrested subject to a county or municipal official who in turn would have the test administered. Your second question was whether or not this term "law enforcement officer" included members of the uniform division of the Georgia State Patrol.
It is a well established principle of Georgia Law that words of a statute must be construed in connection with their context, and the Legislature's intention. must be gathered from the statute as a whole, so as to give effect to all its parts, if possible. See Bibb County v. Hancock, 211 Ga. 429 (1955). Therefore, in order to establish the Legislature's intention in using the term "law enforcement officer" we must look at how the term is used throughout the act. First of all, section 47, paragraph (e) provides in part:
"Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer. ..." (Emphasis added.)
Section 47A, paragraph (a) hereinbefore quoted utilizes the phrase in stating that the test must be "incidental to a lawful arrest and administered at the direction of a law enforcement officer. ..."
Section 47A, paragraph (b) provides in part:
"If any such person refuses the request of a law enforcement officer to submit to a chemical test, the Department of Public Safety, upon receipt of the sworn statement of a law enforcement officer to the effect that he had reasonable cause to believe that such person had been driving or operating a motor vehicle upon a public road or highway while under the influence of intoxicating liquor and that the person refused to submit to the test after being requested by the law enforcement officer. .. .'' (Emphasis added.)
Section 47A, paragraph (c), provides in part:
"[T]he scope of the hearing shall cover the issues of whether the law enforcement officer has reasonable cause to believe

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the person had been driving or operating a motor vehicle upon a public road or highway while under the influence of intoxicating liquor, whether the person was placed under arrest, whether he refused to submit to the test after being requested to do so by a law enforcement officer. " (Emphasis added.)
Section 47A, paragraph (f) provides in part:
"Only a licensed physician, registered nurse, medical examiner or ASC P certified medical or laboratory technician or aide acting at the request of a law enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein...." (Emphasis added.)
Section 47A, paragraph (h) provides for the immunity from civil liability for the person administering the test "when requested in writing by a law enforcement officer to administer such a test." (Emphasis added.)
After careful consideration and review of the Legislature's use of the phrases "a law enforcement officer" and "the law enforcement officer" in the above-quoted statutory provisions, it is my official opinion that:
l. The use of the term "law enforcement officer" in this statute encompasses both the arresting officers and those officers in whose custody an alleged violator is placed.
2. Both the arresting officer and the custodial officer have the authority to demand that an arrested person submit to a blood test, however, the language of this Act does not expressly impose a duty to demand this submission on either officer.
3. This term includes the members of the uniform division of the Georgia State Patrol.
First, in regard to the conclusion that it was the Legislature's intention that either the arresting officer or a custodial officer could demand that an accused submit to this test, close scrutiny should be given to the Legislature's use of the articles "a" and "the" preceding the term "law enforcement officer." In all of the above-quoted portions of this statute it should be noted that the Legislature used the article "a" to precede the terms "law enforcement officer" when reference was made to the request for

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submission to the test. The Supreme Court of Georgia has held that when the Legislature uses the term "a person" this is the equivalent to a general term. Thus, this term means "any person." See Lowe v. Brooks, 23 Ga. 325, 327 (1857). Hence, applying the same reasoning to this statute it can be surmised that the use of the term "a law enforcement officer" in effect is the equivalent to a general term meaning "any law enforcement officer."
Furthermore, this conclusion is not weakened by the fact that the Legislature also used the article "the" in two different paragraphs of this statute. In section 47 A, paragraphs (b) and (c) we find the term "the law. enforcement officer" used. Paragraph (b) provides that upon the accused's refusal of the request of a law enforcement officer to submit to a test the Department of Public Safety can suspend the accused's operator's license. This suspension is pursuant to the "receipt of the sworn statement of a law enforcement officer to the effect that he had reasonable cause to believe that such person had been driving or operating a motor vehicle upon a public road or highway while under the influence of intoxicating liquor and that the person had refused to submit to the test after being requested by the law. enforcement officer. . . ." (Emphasis added.) It is to be concluded that the use of this article has a particularizing effect to the extent that it limits this law enforcement officer to the particular law enforcement officer who had reasonable cause to believe that the accused was driving under the influence and had requested this accused to submit to a test. Otherwise, the courts have recognized the fact that the article "the" as used in statutes, is often used in the sense of any. See Howell v. State, 164 Ga. 204, 214 (1927).
As for the use of the article "the" in section 47 A, paragraph (c), it is submitted that the utilization of the articles "the" and "a" in this same paragraph can be reconciled by also interpreting these articles to mean "any." See Lowe v. Brooks, supra; and Howell v. State, supra.
As a matter of clarification and to avoid speculation the question could be raised that since this paragraph requires that the sworn statement include the statement that the officer had reasonable cause to believe that such person had been driving under the influence, then it could be concluded that the only person who could swear to this fact would be the arresting officer.

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However, it is submitted that the proper conclusion would be to the contrary. This conclusion would be based on the legal interpretation given to the words "reasonable cause to believe." The courts have held that "it is sufficient for finding reasonable cause that the person or his agent has knowledge of such facts as would induce a person of reasonable prudence to make inquiry, when such inquiry would have developed the facts essential to a knowledge of the situation." See Shaw v. Walter E. Heller & Co., 258 F. Supp. 394, 401 (1966). Reasonable cause to believe means that a person must "have such a knowledge of the facts as to induce a reasonable belief. . . ." See Beall v. Bank of Bowden, 219 F. 316, 317 (1915). Furthermore, reasonable cause to believe is the equivalent to constructive knowledge which in substance amounts to actual knowledge but it is not the equivalent of the expression "with notice" which would extend to and include all facts discoverable by reasonable inquiry. See Third National Bank v. Poe, 5 Ga. App. 113, 120 (1908).
In Opinion 68-235 it was concluded that this act in effect establishes a means by which law enforcement agencies may obtain evidence which will be used in any prosecution brought by the solicitor general for the violation of provisions of this statute. Although the administrations of these tests are primarily for evidentiary purposes, yet, it is submitted that the arresting law enforcement officer is given the authority by this Act to request that an accused submit to a test thereby substantiating the charges that have been placed against the arrested violator. Also, it should be pointed out that there is significant difference between the legal interpretation of "probable cause" for arrest and the question of "reasonable cause to believe" a person has been driving under the influence for the purposes of requesting such person's submission to a test. Under the Georgia statutes a law enforcement officer can arrest a person without a warrant for the offense of driving under the influence if the offense is committed in his presence. See Ga. Code Ann. 27-207. Also, since the officer has an opportunity to observe the accused person, then he would be competent to testify regarding the state of intoxication and the extent of the intoxication. His opinion, based on his observations of the accused's state of intoxication, would not be an expression of an opinion as to the ultimate guilt of the accused. See Harris v. State, 97 Ga. App. 495(3) (1958). See, also, Pierce v. State, 53 . Ga. 365 (1874); 2 Wigmore, Evidence 670; 58 Am. Jur.,

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Witnesses, 113, 114. Hence, as it has already been stated, supra, the only reason that an arresting officer would have for requesting that a chemical test by administered would be to substantiate his charges of driving under the influence.
Therefore, it should be concluded that the proper law enforcement officer to request a submission to a chemical test would be the custodial officer and it is submitted that this was the true intent of the wording in section 47A, subsection (b). Based on the above cited authority and reasoning regarding the question of what would be "reasonable cause to believe" that such person had been driving under the influence, it is to be concluded that the custodial officer could swear that he had "reasonable cause to believe" when an arresting officer placed in his custody a prisoner who was charged with driving under the influence.
Thirdly, it is submitted that the members of the uniform division of the Georgia State Patrol would be included under the term "law enforcement officer." Under the provisions of Ga. Code Ann. 92A-239 the duties of the State Patrol are set forth:
"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 the 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."
The appellate courts of Georgia have construed the term law enforcement officer to mean one who is in the process of enforcing laws, the administration of which is delegated to him. See Vandiver v. Williams, 106 Ga. App. 435 (1962). Hence, it is to be concluded that pursuant to the duties as set forth in Ga. Code wann. 92A-239 the uniform division of the State Patrol would come within the definition of a law enforcement officer.
Your second inquiry is in regard to Section 47A, paragraph (g), which reads:
"It is mandatory upon the officials in whose custody he shall have been placed after arrest to have a blood or breath specimen taken for the purpose of determining the amount of alcohol in the person's blood, if the facilities for obtaining such specimens are available in the county of his

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confinement, and to have said specimen analyzed according to the procedures provided therefor by this Section."
You are specifically concerned with the portion of this paragraph which reads, "if the facilities for obtaining such specimens are available in the county." You specifically asked for my official opinion on the following questions:
l. If the facilities for the breath tests are not available in the county where the arrest is made, is it mandatory that the arresting officer or officer in whose charge the suspect has been placed take him to another county where a breath test instrument is available?
2. Does the phrase "available in the county" mean that if no breath test is available that a blood test must be offered and the subject taken to a person qualified as provided for in Section 47, paragraph (b) and Section 47A, paragraph (g) and the blood specimen submitted to the State Crime Laboratory for analysis?
3. If no blood test is available in the county and the demand for blood test is refused, is this a denial of equal protection under the law?
As to these three questions it is my official opinion:
l. Under the plain meaning of the provisions of section 47A, paragraph (g), if the facilities for a blood or breath test are not available in the county where the arrest is made then the arresting officer or officer in custody of the accused is not required to take the accused to another county.
2. If there are no facilities available in the county for administering a breath test the provisions of section 47A, paragraph (g), require that if an accused demands a blood test then a blood test must be administered also if the facilities are available in the county. However, it is to be concluded that if the blood specimen is taken by a qualified person and there are no facilities for testing the blood specimen to determine the alcohol content, the State Crime Laboratory is not required under any statute to accept the blood specimen and analyze this blood specimen for the county.
3. If no breath test is available in the county and the blood test is denied the subject when the facilities for obtaining the blood

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specimen and analyzing the specimen are available in the ~ounty, then such a refusal would be a violation of the explicit provisions of this law. However, if the facilities for obtaining either the breath or blood analysis are not available in the county and the accused's request is refused, this would not be a denial of equal protection under the Iaw.
In regard to your first question regarding whether or not an officer is required upon the request of the accused to carry him to another county when the accused requests a breath test and facilities for obtaining the breath test are unavailable in the county, the answer to this question is solved by the rules of statutory construction.
Ga. Code Ann. 102-102(1) provides:
"The ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject manner, when they shall have the signification attached to them by experts in such trade, or with reference to such subject matter."
This rule of construction is followed by the appellate courts. See Oxford v. Carter, 216 Ga. 821 (l96l); Standard Steel Works Co. v. Williams, 155 Ga. 177 (l923); Rowell v. Georgia Casualty and Surety Company, 109 Ga. App. 631 (1964). Hence, following the plain meaning of this statute, if a person arrested on charges of driving under the influence requests a breath analysis and the facilities for obtaining these breath specimens is unavailable in the county, the officer to whom the request was directed is not required by statute to carry this demanding accused to another county to have the test administered.
In answering the second question regarding this paragraph one preliminary remark should be made. This is in regard to the phraseology of your question in which you state, "If no breath instrument is available that a blood test must be offered. . . ." Your attention is directed to the explicit wording of this paragraph in question. Paragraph (g) provides that an arrested person charged with driving under the influence has a right to demand a blood or breath test. Hence, if such person demands a breath test but does not demand a blood test and if the facilities for administering the breath test are unavailable, it is not mandatory under the provision of this statute that the officer to

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whom the request was directed must offer to have a blood test administered. The plain meaning of the statute indicates that the burden is placed on the arrested party to demand a blood test if he so desires.
One further problem is presented in relation to the utilization of a blood test to determine the alcoholic content in a person's blood. This is due to the nature of the process involved in comparing the breath test to the blood test. We are informed that the procedure for analyzing the breath of an accused would in effect involve only one step, in other words, an accused would emit his breath into a machine which would analyze the alcoholic content on the spot and would record the percentage of alcohol simultaneously. However, in the case of a blood test it is necessary for a qualified person [See section 47, paragraph (d)] to withdraw a blood specimen. Then, this specimen must in turn be analyzed. The problem with paragraph (g) in relation to this type of test is that the wording which qualifies the person's right to have such a test performed provides that, "if the facilities for obtaining such specimens are available in the county of his confinement, to have said specimens analyzed according to procedures provided therefor by this section. . . ." As to the first step of this test, in other words, the obtention of the blood specimen, a person qualified under section 47, paragraph (d), would be required to withdraw the blood specimen. As for the chemical analysis of this blood specimen, paragraph (g) of section 47A provides that said specimen would be analyzed according to the procedures provided therefore by this section. A problem could arise in the situation where a qualified person was available to withdraw the blood specimen but there were no facilities available to perform the chemical analysis of this blood specimen. In such a case, you wish to know whether or not the county officials could request that the State Crime Laboratory analyze this blood specimen.
It is my opinion that section 47, paragraph (c), indicates a legislative intent that the chemical analysis of a defendant's blood should be performed in the county in which the defendant is being confined. Paragraph (c) provides:
"Chemical analyses of the defendant's blood or breath to be considered valid under the provisions of this Section shall have been performed according to methods approved by the

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State Crime Laboratory by an individual possessing a valid permit issued by the State Crime Laboratory for this purpose. The State Crime Laboratory is authorized to approve satisfactory techniques or methods or ascertain the qualifications and competence of individuals to conduct such analyses and to issue permits which shall be subject to termination or revocation at the discretion of the State Crime Laboratory."
Careful scrutiny of this paragraph indicates that the only duty of the State Crime Laboratory is to establish methods and standards for the performance of the chemical analysis of a defendant's blood and to ascertain the qualifications of individuals who are to conduct such analyses and issue permits to said persons. Hence, it is to be concluded that this places the burden on the county to obtain an individual or individuals who are qualified by the State Crime Laboratory to perform these chemical analyses.
Your third question concerned whether or not a breath test is unavailable in the county and a blood test is denied the subject, is this a denial of equal protection under the law. It should be explicitly pointed out that paragraph (g) specifically provides that a person has the right to demand either a breath test or a blood test. However, as it was previously pointed out, this right is qualified to the extent that if there are no qualified persons to withdraw the blood specimens or if there are no qualified persons to perform the chemical analysis on the blood, then this demand for a blood test can be refused by the officer to whom the request was made. Going one step further with this question, it is my opinion that this qualification of paragraph (g) [If the facilities for performing the test are unavailable in the county then this right to demand and have a test performed can be refused.] does not conflict with the constitutional guarantees of equal protection under the law. It should be noted that the entire tenor of this act is permissive in nature in that it is discretionary with the county authorities (See discussion hereinafter.) to provide facilities for obtaining evidence to be used in any criminal prosecution for violation of these provisions. The effect of this paragraph is to establish two classifications. First, the act establishes the class of cases in which an accused is arrested in a county with facilities available for performing a chemical analysis of a defendant's blood or breath specimen. The second class is the class of cases

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in which an accused is arrested in a county without facilities for performing these chemical analyses. Therefore, if a person is arrested in a county in which the facilities are available for performing either or both of these tests, then under section 47A, paragraph (a), of this act a person has given implied consent to submit to one of these tests when demanded to do so by a law enforcement officer pursuant to a lawful arrest. Thus, in a county where these facilities are available the prosecution may take advantage of this law to provide evidence for its case against the accused. The effect of paragraph (g) is to remedy the situation in which one is arrested in the county which has its facilities available but the law enforcement officers in whose custody he is placed do not demand that he submit to a test under the provisions of paragraph (g). In such a case this arrested individual is given the right to demand that a blood or breath test be performed.
On the other hand, in counties in which the facilities are not available to the prosecution to obtain this evidence on the question of the alcoholic content of a person's blood or breath it would not be a violation of an accused's constitutional right to equal protection to refuse his demand that such a test be performed. An accused's right to equal protection includes: (I) that all members of his class are treated equally and that the treatment of the class as opposed to other persons not members of the class is the same, or (2) that the difference in treatment is based upon reasonable classification consistent with the State's objective. Compare, Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, I L.Ed.2d 1485 (1957); Williamson v. Lee Optical, Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Therefore, it is submitted that the division into counties with facilities and counties without facilities is based upon a reasonable classification consistent with the State's objective, that is, to provide evidence-gathering methods and provide results for use in prosecutions for violations of these provisions.
Your third query involves section 47, paragraph (c), which provides that the laboratory is "to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct such analyses." Your question is whether or not this provision gives the Director of the State Crime Laboratory the authority to make it mandatory for the county to purchase breath test instruments which have been approved by the

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Director of the Laboratory or is it within the discretion of the county to refuse to purchase such instruments.
It is my official opinion that the effect of this statute is permissive in nature and, therefore, neither the Director of the State Crime Laboratory nor the Department of Public Safety can make it mandatory for each county to provide facilities for the performance of chemical analysis on blood and breath specimens. But, on the other hand, if the county does elect to establish facilities for the performance of chemical analyses on blood and breath specimens of persons accused of driving under the influence, then it is my official opinion that the provisions of section 47, paragraph (c), give the authority to the Director of the State Crime Laboratory to designate those breath analyzation instruments which the Director of the Laboratory deems acceptable.
It is a general principle of statutory construction that while there is no absolute test by which it may be determined whether a statute is mandatory or directory, the primary rule is to ascertain the legislative intent as revealed by an examination of the whole act. Consideration must be given to the entire statute, its nature, its object, the consequences which would result from construing it one way or the other, and construction of the statute in connection with other related statutes. See 82 C.J.S., Statutes 376.
Close scrutiny of this statute will reveal that there are no provisions whatsoever making it mandatory that a county establish facilities for the performance of chemical analysis on blood and breath specimens obtained from individuals accused of driving under the influence. Therefore, I reiterate my conclusion set forth in Opinion 68-235 in which it was surmised that the effect of this law is to provide evidence to be used in any prosecution for the violation of the provisions of this statute. Therefore, the decision of whether or not to establish methods for obtaining this evidence must be left within the discretion of the county. However, once a county decides to establish procedures for performing these chemical analyses, then a county will be controlled by the provisions of section 47, paragraph (c), which state explicitly that: "Chemical analyses of the defendant's blood or breath to be considered valid under the provisions of this section shall have been performed according to methods approved

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by the State Crime Laboratory and by an individual possessing a valid permit issued by the State Crime Laboratory for this purpose. . . ." Thus, it is to be concluded that the use of the word "methods" in this statute would encompass the question of the type of instruments which would be acceptable for the performance of chemical analyses. Also, since this paragraph further provides that the State Crime Laboratory is authorized to approve these satisfactory techniques or methods, then it is to be concluded that the Director of the State Crime Laboratory has the authority to designate wh~t instruments are scientifically acceptable for the performance of the chemical analysis.
Your last request also deals with section 47, paragraph (c), quoted above. Your request my official opinion on: (1) Whether this paragraph authorizes the Director of the State Crime Laboratory to set forth rules and regulations governing the examination of blood or breath intoxicants? (2) Whether these same provisions give the Director of the State Crime Laboratory the authority to check at intervals the accuracy of the results obtained by these qualified personnel and if a qualified person is performing these tests improperly whether the Director can terminate the permit issued to the person?
It is my official opinion that the provision of this code section gives the Director of the State Crime Laboratory the authority to establish rules and regulations governing the examination of blood and breath specimens. Secondly, it is my official opinion that the Director has the authority to revoke permits issued to a person who is performing these chemical analyses improperly.
It is a general principle of administrative law that in regard to the rule making powers of a department or an administrative head this administrative agency can have only the administrative or policing powers expressly or by necessary implication conferred upon it. See G/ustrom v. State, 206 Ga. 734 (1962). The power and authority for the establishing rules and regulations relating to the methods of performing the chemical analyses and ascertaining the qualifications and competence of individuals to conduct these analyses is expressly given the State Crime Laboratory by the provisions of paragraph (c). Furthermore, since the State Crime Laboratory is authorized by paragraph (c) to establish methods for the performance of this test and to qualify persons to conduct these analyses and issue permits to these persons then by necessary

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implication the Director is empowered with the authority to revoke a permit issued to a qualified person when this person has performed these chemical analyses improperly.

OPINION 68--270 (Unofficial)

June 26, 1968

In regard to your request for a sales tax exemption, we wish to inform you that the Anneewakee Foundation, Inc. does not qualify as a bona fide private, elementary school within the meaning of this term as it is used in Georgia Law. (Ga. Laws 1968, p. 559). We must examine your request for an exemption in view of the following rule: Exemptions from taxation must be strictly construed and the exemption will not be held to be conferred unless the terms under which it is granted clearly and distinctly show that such was the intention of the legislature. Cherokee Brick & Tile Co. v. Redwine, 209 Ga. 691, 75 S.E.2d 550 (1953).
Private schools are those schools which are ejusdem generis with public schools, namely those schools in which the instruction is permitted to take the place of compulsory instruction required in public schools because the instruction equals that in public schools in thoroughness, efficiency and progress of the pupils under it. Commonwealth v. Connecticut Valley St. Ry. Co., 196 Mass. 309, 82 N.E. 19 (1907). The Supreme Court of the United States has held that parents may fulfill a state's educational r:equirements by sending their children to private schools in lieu of public schools. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,69 L.Ed. 1070 (1925).

Your school though laudable in its purpose does not provide general instruction for children which could be considered an equal substitute for instruction received in public schools.
Therefore, Anneewakee Foundation, Inc. is not a private, elementary school within the meaning of Ga. Laws 1968, p. 559 and is not entitled to a sales tax exemption under this Act.

OPINION 68--271

June 27, 1968

You posed certain questions in regard to certain Amendments to

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the United States Social Security Act, as enacted by the 90th Congress (Pub. L. No. 90-248).
Specifically, you referred to Section 426(d)(2) and Section 426(e)(3) of the above-referred to Act, as amended, and posed the following questions:
1. Under the existing laws establishing the State Department of Family and Children Services and the Division for Children and Youth, do such agencies have a separate legal status as contemplated in the above-quoted Amendments to the Social Security Act?
2. In the event it is your opinion that the State Department of Family and Children Services and the Division for Children and Youth are separate and distinguishable legal entities, do they have the authority to contract between themselves for the administration of the services provided by the Amendments to the Social Security Act referred to above?
Section 426(d)(2), as amended, and as redesignated, requires that a State provide a program:
(1) That has a plan for child-welfare services which has been developed as provided in this part and which-
(A) provides that (i) the State agency designated pursuant to section 402(a)(3) to administer or supervise the administration of the plan of the State approved under part A of this title will administer or supervise the administration of such plan for child-welfare services and (ii) to the extent that child-welfare services are furnished by the staff of the State agency or local agency administering such plan for child-welfare services, the organizational unit in such State or local agency established pursuant to section 402(a)(l5) will be responsible for furnishing such child-welfare services, . . . .
In the above-referred-to amended Section the " . . . plan under part A of this title. . ." is the Aid to Families with Dependent Children (Pub. L. No. 90-248, 240[b]).
Therefore, under the above amendment, the State agency which is '". . . designated ... to administer or supervise the administration ..." of the Aid to Families with Dependent

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Children program " ... will ..." also " administer or supervise the administration of . . . [the] child-welfare services. . . ."
Your attention is also called to Section 426(e)(3) of the above Act which provides the effective date of Section 426(d)(2), with exceptions, as follows:
(3) The amendments made by paragraphs (I) and (2) of subsection (d) shall become effective July I, 1969, except that (A) if on the date of enactment of this Act the agency of a State administering its plan for child-welfare services developed under part B of title IV of the Social Security Act is different from the agency of the State designated pursuant to section 402(a)(3) of such Act, so much of paragraph (1) of section 422(a) of such Act as precedes subparagraph (B) (as added by paragraph (2) of such subsection (d)) shall not apply with respect to such agencies but only so long as such agencies of the State are different, and (B) if on such date the local agency administering the plan of a State for childwelfare services developed under part B of title IV of the Social Security Act is different from the local agency in such subdivision administering the plan of such State under part A of title IV of such Act, so much of such paragraph (1) as precedes such subparagraphs (B) shall not apply with respect to such local agencies but only so long as such local agencies are different.
Therefore, if the State agency which administers the childwelfare services of Title IV, part B, is "different" from the State agency which administers the aid to families with dependent children then that portion of the new admendments to the Social Security Act providing for coordination between the child welfare service and the aid to families with dependent children (Section 422(a)[l][A], as added by Section 240[c], Public Law 90-248, 90th Congress) will not apply as long as " . . . such agencies of the State are different, . . . ." "Different" is defined as "differing in character or quality; not alike; dissimilar" as well as "not identical; separate or distinct;" (The Random House Dictionary ofthe English Language, Unabridged Edition, 1966).
Thus, the first question above posed becomes whether the State Department of Family and Children Services which administers through the Division of Social Administration the aid to families

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with dependent children program is "different" from the Division of Children and Youth as established by Ga. Laws 1963, p. 81 (Ga. Code Ann. 99-201, et seq.) which administers the child welfare services for the State of Georgia.
Your attention is called to Ga. Laws 1963, pp. 81, 86 (Ga. Code Ann. 99-204(a)) which establishes " ... within the State Department of Family and Children Services a division to be known as the Division for Children and Youth." You will note also that said " . . . division shall be under the supervision and direction of a State Board of Children and Youth." You will note that all members of said Board are appointed by the Governor of Georgia.
Additionally, by Ga. Laws 1963, pp. 81, 91 (Ga. Code Ann. 99-206) provision is made as follows in regard to the State Board for Children and Youth:
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 responsible 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.
As you know, the State Board of Family and Children Services as authorized by Ga. Laws 1960, pp. 85, 86 (Ga. Code Ann. 99-104) is by Ga. Laws 1960, pp. 85, 87 (Ga. Code Ann. 99-106) created as " ... an advisory board only. . . ." Thus, the State Board of Family and Children Services functions purely as an advisory board for the State Department of Family and Children Services, while the State Board for Children and Youth serves the Division of Children and Youth as an administrative Board.
By Ga. Laws 1963, pp. 81, 94 (Ga. Code Ann. 99-209(f)) the following status is given the Division for Children and Youth:
(f) Autonomy of division for development and administration of program.-The Division for Children and Youth is constituted a division of the Department of Family

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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 administrative economy in the operation of the division and to prevent duplication of administrative costs.
Finally, your attention is called to Ga. Laws 1963, pp. 81, 91 (Ga. Code Ann. 99-207) which provides for the powers, duties and responsibilities of the Director of the Division for Children and Youth.
You will note that the last sentence of Ga. Code Ann. 99207 provides that "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." Thus, the State Board for Children and Youth serves as the administrative authority for the Division for Children and Youth while the Director of the Division administers and supervises the activities pursuant to Board directive, subject to the supervision of the Director of the Department of Family and Children Services. Therefore, since the Board is the decision making authority for the Division and since the Division was placed in the State Department of Family and Children Services only so as to " ... effectuate administrative economy in the operation of the division and to prevent duplicates of administrative costs..." (Ga. Code Ann. 99-209(f)), it is my official opinion that within the meaning of Section 426(e)(3), supra, that the two state agencies, i.e., the State Department of Family and Children Services and the Division for Children and Youth, are "different" and Section 426(d)(2), supra, does not apply to such agencies.
The second question posed by your letter concerns the power of the State Department of Family and Children Services and the Division of Children and Youth to contract with each other for services to be rendered to citizens of Georgia.
Your attention is called to Ga. Laws 1963, pp. 81, 116 (Ga. Code Ann. 99-216(b)) which provides that:
The board shall have the power and is hereby authorized:
(b) To enter into contracts and cooperative agreements with proper authorities of the State Department of Family and Children Services and county or district departments of

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family and children services as may be necessary or desirable in effectuating the purposes of this Chapter.
Therefore, subject to the limitations of Ga. Laws 1963, pp. 81, 94 (Ga. Code Ann. 99-209(d)) the State Board for Children and Youth has the power to contract with the State Department of Family and Children Services.

OPINION 68--272 (Unofficial)

June 27, 1968

You have requested my optmon concerning the 1968 amendment to Ga. Code Ann. 59-106. The questions you have framed are as follows:

1. Do the words "and no new names shall be added until those names originally selected have been completely exhausted..." mean that the existing jury boxes (both grand and traverse) must be completely exhausted before drawing any names for jury service from the boxes containing the revised jury?

2. If so, why should the list be revised except at such time as the existing boxes have been completely exhausted?

The law, as now set forth, provides for the periodic revision of the jury list. Each such revision is intended to supersede and entirely supplant all pre-existing jury lists. The only list intended to have any effect during any particular period of time is the list which reflects the most recent revision by the jury commissioners. Under normal conditions, the interim addition of names to the most recently revised jury list is forbidden. The only exception to this rule is where in a particular case every prospective juror whose name appears on the most recently revised jury list has been summoned without the requisite number of jurors having been selected. It is my opinion that your first question must be answered in the negative. This being so, your second question would appear to require no answer.

OPINION 68--273 (Unofficial)

June 27, 1968

You ask our opinion whether a person whose house is located

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in the Blackburn District of Jeff Davis County may qualify as a candidate for Commissioner from the Whitehead District as his land extends well into the Whitehead District.
The General Assembly in 1958 passed a law creating a. Board
of Commissioners of Roads and Revenues of Jeff Davis County. Section 1 of that Act provides that " ... each commissioner shall reside in the district he represents. . . ." (Ga. Laws 1958, pp. 3288, 3289).
The word "residence" is defined in the 1964 Georgia Election Code to mean "domicile." [Ga. Code Ann. 34-l03(aa)]. Ga. Code Ann. 79-40 I provides that "the domcile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside...."
One may have many residences but only one domicile. Commercial Bank of Crawford v. Pharr, 75 Ga. App. 364, 43 S. E.2d 439. "Domicile" as defined in Davis v. Holt, 105 Ga. App. 125, 123 S. E.2d 636, means "permanent place of abode and the concurrence of actual presence and intention to remain is necessary to acquire domicile."
Consequently, it is my opinion that the fact that the proposed candidate's land extends into the Whitehead District is immaterial. In order to qualify as a candidate from the Whitehead District, his house must be within the b01.~ndaries of that District. He must be physically present in that District.
At least one court has passed upon this precise question. In Application of Davy, 281 App. Div. 137, 120 N. Y.S.2d 450, (1952), the court held that where a house was in one county and the land extended into another county that the residence was in the county where the house was located.
Many courts have ruled upon the problem of determining a domicile where the boundary line between two localities passes through the dwelling house of an individual. In those cases, it has been held that the domicile even in such an extreme situation rests in the locality where the main activities of a home are carried on. Gray v. O'Banion, 23 Cal. App. 468, 138 P. 977, 981; Abington v. North Bridgewater, 23 Pick. 170, 40 Mass. 170. Thus, the general rule is that even the actual physical presence of a portion of a house in a county is not of itself sufficient to make the occupant's domicile in that county. Consequently, it would appear that, under the general rule, the fact that one's land extends into

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another district is not of itself sufficient to make such district one's domicile and that the candidate whom you mention would, accordingly, be ineligible to run for the office of Commissioner from the Whitehead District.

OPINION 68-274 (Unofficial)

June 27, 1968

This is in reply to your letter asking for an interpretation of the Georgia Election Code. Specifically, you have asked whether an Ordinary, in submitting his budget for election costs to the county pursuant to Ga. Code Ann. 34-40 I(k) is bound by the schedule of fees found in Ga. Code Ann. 24-1716 wherein it is stated that the Ordinary is to receive $5.00 per ballot box for preparing all papers, appointing managers and consolidating returns in any general or special election.

Ga. Code Ann. 34-402 imposes upon the governing authority of any county the duty to appropriate funds necessary to the conduct of elections "including the payment of the .compensation of the poll officers, custodians and other assistants...." Courts are usually guided by the last expression of the General Assembly on a subject. U.S. Fidelity & Guaranty Co. v. Toombs County, 187 Ga. 544, 551 (1939). Thus, Ga. Code Ann. 34-402, having been first enacted in 1964, would take precedence over Ga. Code Ann. 24-1716, last revised in 1958. However, the cardinal rule of statutory construction is to carry into effect the legislative intent and purpose. Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1950). An examination of Ga. Code Ann. 34-402, I believe, clearly shows the legislative intent to have the counties bear the cost of holding elections. It obviously was not designed to deprive an Ordinary, compensated under the fee system, of his means of earning a livelihood. Accordingly, I believe that such an Ordinary may properly include in his budget of election expenses, his compensation computed from the schedule found in Ga. Code Ann. 24-1716.

OPINION 68-275 (Unofficial)

June 28, 1968

This will acknowledge your letter to the Honorable Richard L. Chambers, who has asked that we answer your last

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correspondence because of familiarity with the law and the problem precipitated by the case of City of A del v. Georgia Power Company, 224 Ga. 232 (1968).
Your letter points out the fact that you are seeking to annex to the City of Augusta certain property under the so-called 60% method. Furthermore, you point out that Augusta seeks to annex, not a street right-of-way, but property owned by the State of Georgia on which shops and offices ofthe State Highway Department are located.
Regardless of the method of annexation and regardless of the fact that the property involved is not a road right-of-way, the conclusion is the same. Whether the property be road right-of-way or some other property which has been deeded to a State Agency, the property belongs to the Sovereign State of Georgia.
Hence, in my judgment, action by the Legislature of the State of Georgia is necessary to consent to annexation ofState property as part of the corporate limits of the City of Augusta, since the State Highway Department at this time does not have delegated authority to exercise such action.

OPINION 68--276

July 1, 1968

In response to your letter concerning income taxes on out-ofstate university employees, we wish to inform you of the applicable Georgia and North Carolina law.

Dr. Polansky having expressed his intent to consider himself a resident of Georgia, is in fact domiciled in this State. To acquire a domicile, actual residence and intention to remain must concur; and to change his domicile a person must actually remove to another place with a present intent of remaining there indefinitely. Worsham v. Ligon, 144 Ga. 707, 87 S.E. 1025 (1916). The other employees have apparently established their domicile in North Carolina.

Dr. Polansky resides in North Carolina for a temporary or transitory purpose; he is therefore classified as a "resident" within the meaning of North Carolina tax law. Gen. Stat. of N.C. Ch. 105, 105-135(13).

The power of a state to collect a tax on income earned in the

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taxing state by a taxpayer who is a citizen of a different state has long been recognized by the United States Supreme Court. Shaffer v. Carter, 252 U.S. 37,40 S.Ct. 221,64 L.Ed. 445 (1920). The rationale of this policy is that Dr. Polansky's presence and occupation in North Carolina creates reciprocal duties of protection by the state and support by the taxpayer.
In regard to the University's requirement to withhold North Carolina income tax, the operation of a child research field station in North Carolina appears to be a sufficient nexus with that state to subject the University to North Carolina withholding tax law. "[D]ue process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Bros. Co. v. Maryland, 347 U.S. 340, 344-345,74 S.Ct. 535,98 L.Ed. 744 (1954).
The pertinent North Carolina Law provides in part:
"(a) Every employer making payment of wages on or after January 1, 1960, shall deduct and withhold with respect to the wages of each employee for each payroll period an amount determined as follows:
"Such amount which, if an equal amount was collected for each similar payroll period with respect to a similar amount of wages fo~ each payroll period during an entire calendar year, would aggregate or approximate the income tax liability of such employee under article 4 of this chapter after making allowance for the personal exemptions to which such employee would be entitled on the basis of his status during such payroll period and after making allowance for withholding purposes for a deduction from wages of ten per cent (10%) thereof, but not exceeding five hundred dollars ($500.00) per calendar year, and without making allowance for any other deductions." Gen. Stat. of N.C. Ch. 105, 105-163.2 (1965).
The applicable provision under Article Four provides:
"A tax is hereby imposed upon every resident of this State which shall be levied, collected, and paid annually, with respect to the net income of the taxpayer as herein defined, and upon the net income derived from North Carolina sources of every nonresident individual which is attributable to the ownership of any interest in real or tangible personal

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property in this State or which is from a business, trade, profession, or occupation carried on in this State, computed at the following rates, after deducting the exemptions provided in this division.
"On the excess over the amount legally exempted, up to two thousand dollars, three percent (3% ).
"On the excess above two thousand dollars, and up to four thousand dollars, four percent (4% ).
"On the excess above four thousand dollars, and up to six thousand dollars, five percent (5% ).
"On the excess over six thousand dollars, and up to ten thousand dollars, six percent (6%).
"On the excess over ten thousand dollars, seven percent (7% )." Gen. Stat. of N.C. Ch. 105, 105-136.
In summary, we find that the University of Georgia has a sufficient nexus with the State of North Carolina to be subject to said State's income tax withholding laws. Pursuant to Georgia Law, Dr. Polansky may credit on his Georgia income tax the same amount he paid to North Carolina provided such amount is not greater than the amount fixed under the Georgia rate. Ga. Code Ann. 92-3111.

OPINION 68-277 (Unofficial)

July 1, 1968

In your letter you ask whether the Tax Commissioner has the discretion to refuse to accept the payment of property taxes by a person other than the person against whom the tax execution was issued and refuse to transfer the tax execution.

Ga. Code Ann. 92-7602 provides in part that:

"Whenever any person, other than the person against whom the same has issued, shall pay any execution issued for State, county or municipal taxes, the officer whose duty it is to enforce said execution shall, upon the request of the party paying the same, transfer said execution to said party; . . ."

The clear wording of this statute requires the Tax Commissioner to accept the payment of the taxes and upon a request transfer the execution to the party paying the tax.

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OPINION 68-278

July 1, 1968

This is with reference to your recent inquiry for an official opinion on several questions arising out of House Bill 967 of the 1968 Session of the General Assembly known as "The Driver Training School License Act." The questions will be answered in the order asked.
1. "Does this law allow the Department of Public Safety to set the standards of and regulate the 'subject matter' that can be included in the course of instruction offered by a commercial driver training school?"
Section 6 of the act provides that "the Department is authorized to prescribe by rule standards for the . . . operation of driver training schools and instructors and to adopt other resonable rules and regulations to carry out the provisions of this Act." (Emphasis added.) Quite clearly, the aforementioned language of section 6 does not expressly confer authority upon the Department to regulate the "subject matter" to be taught; but it does, however, expressly authorize the Department to prescribe standards for the operation and that necessarily includes by reasonable implication the authority to regulate the subject matter to be taught. Ordinarily, the powers of administrative officers and agencies are not derived from inferences and implications, but such an officer or agency may have such implied powers, and only such, as are necessarily inferred or implied from, or incident to, the powers and duties expressly granted and imposed on them. 73 C.J.S. Public Administrative Bodies and Procedure 50.

I conclude, therefore, that the Act allows the Department to set reasonable standards and to regulate the "subject matter" to be taught in the course of instruction offered by a commercial driver training SGhool.
2. "Under this law, can the Department of Public Safety inspect the school's vehicles more often than the annual safety inspection called for under the State Motor Vehicle Inspection Law?"
The Georgia General Assembly enacted into law the "Motor Vehicle Safety Inspection Law," Ga. Laws 1963, p. 333 (Ga. Code Ann. 68-1723 to 68-1726.5), which sets out the

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requirement "The Director shall once each year require that every motor vehicle, . . . be inspected . . . ." The "Driver Training School License Act" does not place a greater burden on commercial driver training schools to have their vehicles inspected than is already required to them under the "Motor Vehicle Inspection Law," and to assume that such power in the Department is inferentially given them by virtue of section 6 of the "Driver Training School License Act" would be to assume powers not expressly given to the Department nor that which could reasonably be assumed to flow from the powers expressly granted to the Department necessary to carry out the purposes of the act. A regulating agency has no constitutional right to legislate, Brown v. Quality Finance Company, 112 Ga. App. 369, 370-71 (1965), and to require more than a periodic inspection, I conclude, would be to create a requirement with the force and effect of legislation where no such duty is now imposed upon the commercial driver training schools of this State.
It should be remembered, however, that if members of the Department have "reasonable cause to believe" that a "vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair," the Department may require "the driver of such vehicle to stop and submit such vehicle to an inspection." Ga. Laws 1953, Nov. Sess., p. 556, Ga. Code Ann. 68-1724. See also Ga. Code Ann. 68-1726(c) wherein the Director is authorized to suspend the registration of any vehicle which he determines is in such unsafe condition as to constitute a menace to safety.
3. "Under Section 3, paragraph (b) of the law, what is meant by 'an established place of business to the public' and what would constitute such a place of business?"
A "place of business" has been variously defined by the Georgia Appellate Courts as a "place where a calling for the purpose of gain or profit is conducted." Union and Mechanics Club v. City of Atlanta, 136 Ga. 721, 725 (1911 ), or a place where the public is invited to come to engage the services or buy the products of the offering party. Lyons v. City of Atlanta, 6 Ga. App. 248 (1909). "The word 'office' is synonomous with the words 'place of business' . . . . " General Reduction Co. v. Tharpe, II Ga. App. 334, 336 (1912). See also Ga. Code Ann. 22-1101 which provides that service of process on

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corporations may be had "at the place of transacting the usual and ordinary public business of such corporation."
4. (a) "What course of appeal would an applicant have should he be denied a license for a school or an instructor's permit?
(b) "Should the Department of Public Safety establish a hearing board? If so, how would it be constituted?"
In response to (a), an applicant would have no course of appeal should he initially be denied a license, for such action by the Department would be administrative in nature and all that would be required of the Department would be that they exercise their discretion in response to the application. This is particularly so in view of the fact that the act does not provide for a hearing prior to the granting or rejection of an application for a license.
However, the denial of an existing license would require a different result. Section Seven (7) of "The Driver Training School License Act" sets out that the "[t]he Department may cancel, suspend, revoke, or refuse to renew any . . . license, upon good cause being shown and after . . . notice to the license holder." Although the Act does not expressly provide for a hearing after notice, the Appellate Courts of this State have said that "where the State confers a license to engage in a profession, trade, or occupation, not inherently inimical to the public welfare, such license becomes a valuable right which cannot be denied or abridged except after due notice and a fair and impartial hearing before an unbiased tribunal." Leakey v. Georgia Real Estate Commission, 80 Ga. App. 272, 273 (1949). Notwithstanding the Leakey case, above, serious constitutional questions concerning due process could be raised were a hearing not allowed after the cancelling, suspending, revoking or refusal to renew a license.
Therefore, necessarily concluding that notice and hearing is required by "The Driver Training School License Act," it follows that Ga. Laws 1964, p. 338, as amended, codified as Ga. Code Ann. 3A-119 is invoked. Ga. Code Ann. 3A-ll9(a) provides, "When the grant, denial, or renewal of a license is required by law to be preceded by notice and opportunity for hearing, the provisions of the Chapter concerning contested cases shall apply." Ga. Code Ann. 3A-ll4 deals with "contested

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cases" and provides for the procedures to be followed for a hearing.
In response to your specific inquiry concerning an applicant's "course of appeal," Ga. Code Ann. 3A-l20 provides for judicial review of contested cases and sets out the procedure for such appeal.
(b) The ultimate decision after a hearing in a contested case (Ga. Code Ann. 3A-ll4) must be rendered by the "officials of the agency," Ga. Code Ann. 3A-ll7. However, for the purposes of the hearing, "in addition to the agency, any contested case may be held before any agency representative who has been selected and appointed by the agency for such purpose." Ga. Code Ann. 3A-ll4(5). The references to the "agency representative" and hearing officer in Ga. Code Ann. 3A-ll4(5) and 3All4(6) are singular and would seem to preclude a hearing "board" composed of members outside of the agency. Nor would a "board" seem necessary in that a "fair" hearing would be required regardless of who hears the evidence and it is presumed that a single hearing officer would be as fair in the handling of a hearing as would be a "hearing board."
5. "What is the relationship of the Board or the Act in its entirety in so far as the Georgia Administrative Procedure Act is concerned?"
The Administrative Procedure Act is applicable to the act in those situations set out in response to question four (4) above.
6. "What are the required credits in Driver Education and Safety that are required of instructors in the public schools of Georgia?"
The Georgia Department of Education requires of its public school teachers who give driver training instruction fifteen (15) credit hours of instruction in driver training and safety education courses. This would be the equivalent of three (3) five-hour courses from a college or university on the "quarter" system. Driver training courses are offered in Georgia at Morris Brown College, Atlanta; University of Georgia, Athens; Georgia Southern College, Statesboro; Savannah State College, Savannah; and Albany State College, Albany. However, credits from out of state colleges or universities are also acceptable to the Department of Education and two such schools may be University of Florida,

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Gainesville, Florida, and Austin Peay State College, Clarkesville, Tennessee.
The University of Georgia offers several short courses and offcampus programs where one may acquire the necessary driver education credits necessary in the State public school system. Interested applicants in the short courses and off campus programs should direct their inquiries to Director of Admissions, or Director of In-Service Courses, University of Georgia, Athens, Georgia, or Atlanta Area Teacher Education Service, 1510 Pierce Drive, N. E., Atlanta, Georgia.
7. "Under Section 4(b), what can be accepted as evidence of credit 'equivalent to credits' required in question 6 above?"
Generally, "evidence of credit" in so far as colleges are concerned would be a certified transcript from the Registrar or Records Office of the college where the credits are earned. I see no reason why such a transcript would not be acceptable to effectuate the purposes of this act.

OPINION 68-279 (Unofficial)

July 2, 1968

This letter is in response to your request for any Georgia statutes and administrative or policy regulations which prohibit correctional institutions, peace officer units or probation or parole agencies from hiring persons previously convicted of a felony or misdemeanor.
The following provisions are pertinent, but, except where noted, have not yet been judicially construed to apply to prospective employees of the specific agencies mentioned above.

The Constitution of Georgia, Art. II, Sec. II, Par. I (Ga. Code Ann. 2-801 ):
" . . . [T]he foll~wing classes of persons shall not be permitted to ... hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds,

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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."
This was applied to a municipal policeman convicted of a felony in Morris v. Hartsfield, 186 Ga. 171,197 S.E. 251 (1938).
Ga. Laws 1964, p. 689 (Ga. Code Ann. 89-505):
"State and County Offices, Removal Upon Final Conviction of Felony- Upon final conviction of a felony, the office of any State or county officer shall be vacated instanter without further action."
Ga. Laws 1787, Cobb, 366; 1823, Cobb, 209 (Ga. Code Ann. 89-101(3)):
"Persons Ineligible; De Facto Officers- 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 . . . , viz: (3) Any person convicted and sentenced finally for any felony, under the laws of this or any other State, involving moral turpitude, the offense being also. a felony in this State~ unless restored by a pardon from the proper executive, under the great seal of the State, to all the rights of citizenship."
This was also applied to a municipal police officer convicted of a felony in Morris v. Hartsfield, supra.
The Georgia State Merit System Rules, 6, paragraph 204, provide that the Director of the State Merit Board "may refuse to examine or disqualify an applicant, ... if ... [inter alia] (J.) he has been convicted of infamous, criminal or notoriously disgraceful conduct."
My conversation with the Personnel Director of the State Board of Corrections reVeals that those prospective "custodial" employees, i.e., wardens, guards, etc., who are not classified under the Merit System are not hired if they have been convicted of a felony: This policy is discretionary, however, with misdemeanants.

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OPINION 68-280
July 9, 1968
This is in reply to your request for my official opinion on whether it would be unconstitutional for a county to subsidize an ambulance service operated by a hospital authority. It is understood that this activity would be carried out in the following manner: A county through its governing officials (county commissioners) would agree with the hospital authority in said county that the county would pay to the hospital authority a lump sum each year to cover part of the operating costs of an emergency ambulance service for said county. The hospital authority would charge a fee for the use of such service to its patients which would partially cover the costs of operation. The balance of the necessary finances would be sought from the federal government in the form of a grant under the National Highway Safety Act of 1966.
It is my official opinion that an agreement by a county with a hos pita! authority in the nature of a contract as described above would not violate any of the provisions of the Georgia Constitution and, therefore, the county would be authorized to pay sums of money to the hospital authority for this service.
Art. VII, Sec. VI, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-5901) provides in part as follows:
"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."
The Supreme Court of Georgia in the case of State v. Blasingame, 212 Ga. 222 (1956) determined that the above-quoted provisions of the Constitution did not empower the Legislature to authorize the State and its institutions and subdivisions to enter

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into every contract which they might in their discretion deem advisable. The Supreme Court in the later case of Mulkey v. Quillian, 213 Ga. 507 (1957) interpreted this provision to mean that the State and its agencies and subdivisions may contract with each other with reference to facilities and services theretofore authorized by the Constitution. However, the court went on to state that this provision does not supersede all other provisions of the Constitution with reference to the limitations on and powers of the State, its agencies and subdivisions and authorize them to undertake to maintain and provide additional facilities and services which are prohi bi ted under other provisions of the Constitution.
The question, then, is whether or not the payment of money to a hospital authority to cover part of the operating costs of an emergency ambulance service for said county is a facility or service of the State or its subdivisions under the provisions of the Constitution of the State of Georgia granting or limiting the powers and undertakings of the State and its agencies and subdivisions. If it is, then Art. VII, Sec. VI, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-5901) would certainly authorize the county to enter into such a contract. If not, then such an activity is unconstitutional.
Art. VII, Sec. II, Par. I of the Constitution of Georgia (Ga. Code Ann. 2-550 l) provides in part as follows:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only: . . . ."
The Supreme Court of Georgia in Mulkey v. Quillian. supra, at 509, gave the following effect to this provision of the Constitution:
"This provision then lists all of the purposes for which the power of taxation may be exercised, and the only purposes. It is obvious that if the power of taxation can be exercised only for the purposes there listed, money raised by taxation must be used only for the purposes there listed or the section is meaningless, and public funds could be used for any purpose once collected . . . ."

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Under the provisions of Art. VII, Sec. II, Par. I ol the Constitution of Georgia, supra, subdivision (9), one of the purposes for which the General Assembly shall exercise the power of taxation is for public health. In the provisions of Ga. Code Ann. 88-1805 which set forth the functions and powers of the hospital authority one of the enumerated functions is to operate hospital projects. Under the provisions of Ga. Code Ann. 881802 the Legislature defines the word "project" to include "hospitals, sanitariums, dormitories, clinics and housing accommodations, nursing homes, rehabilitation facilities, or other public buildings for the use of patients and officers and employees of any institution under the supervision and control of any hospital authority and all utilities and facilities deemed by the authority necessary or convenient for the efficient operation thereof."
It is submitted that the operation of an emergency ambulance service would be a necessary or usual adjunct of the operation of hospital authority projects and would come within the scope of the legislative definition of "all utilities and facilities deemed by the authority necessary or convenient for the efficient operation thereof." See Ga. Code Ann. 88-1802, supra. This emergency ambulance service would serve a useful and desirable purpose in the maintenance and the promotion of public health in a county. Therefore, it is to be concluded that an agreement between the hos pita! authority and the county under the above-stated terms would not violate the provisions of Art. VII, Sec. VI, Par. I of the Constitution of Georgia.
One other provision should be considered, however; Art. VII, Sec. V, Par. I (Ga. Code Ann. 2-5801) of the Constitution of Georgia provides:
"The General Assembly shall not authorize any county, municipal corporation or political division of this State, through taxation, contribution or otherwise, to become a stockholder in any company, corporation or association, or to appropriate money for, or to loan its credit to any corporation. company, association. institution or individual except for purely charitable purposes. ..." (Emphasis added.)

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Since it is clear that the county would be appropriating money for the ambulance service by paying these funds to the hospital authority the issue is whether or not the function of the hospital authority would fit the exception for "purely charitable pur poses."
It is my opinion that a county hospital authority established and operated pursuant to the provisions of Ga. Code Ann. Ch. 88-18 would come within the definition of an operation for "purely charitable purposes."
In the case of McLucas v. State Bridge Building Authority, 210 Ga. 1 (1953) the Supreme Court of Georgia was faced with the question of whether or not the State Bridge Building Authority would come within the scope of the meaning of "all institutions of purely public charity." The court in this case held that in view of the beneficial purpose for which the Bridge Building Authority was created by the Legislature coupled with the fact that it has no shareholders or other owners of any character to which its corporate profit or income was distributable then the court concluded that the Bridge Building Authority was an institution of purely public charity. Also, the Supreme Court in the case of Tharpe v. Central Georgia Council. B.S.A., 185 Ga. 810 (1938) held that the word "charity" as it is used in the law may include "substantially any scheme or effort to better the condition of society or any considerable part of it." Therefore, in comparing the functions and powers of the hospital authority as set forth in Ga. Code Ann. Ch. 88-18 with the appellate court's definition of activities which are carried on for purely charitable purposes, it is to be concluded that the hospital authorities come within the scope of this definition.
This conclusion is reenforced by the provisions of Art. VII, Sec. I, Par. IV of the Constitution of Georgia (Ga. Code Ann. 25404) which provides for an exemption of certain property from taxation. One of the classes of property exempted is property owned by purely public charities, but to qualify as such, the

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institution must use any income it receives for charitable purposes and cannot use such income as profit or income distributable to owners or shareholders and corporations owning the property. See United Hospitals Ass'n v. Fulton County, 216 Ga. 30 (1960); Mu Beta Chapter Chi Omega House Corp. v. Davidson, 192 Ga. 124 (1941); Camp v. Fulton County Medical Soc'y, 219 Ga. 602 (1964). It should be noted that the Legislature has, in effect, recognized hospital authorities as purely public charities in the provisions establishing hospital authorities. We find in the provisions of Ga. Code Ann. 88-1803 (1967) that the hospital authorities are to be granted the same exemptions and exclusions from taxes as are presently granted to cities and counties for the operations of facilities similar to those facilities to be operated by the hospital authority. Also, in Ga. Code Ann. 88-1808 the income from certificates issued by the authority is declared exempt from all taxes.

OPINION 68-281 (Unofficial)

July 9, 1968

You requested information concerning the fees which you could lawfully charge in regard to duties performed by you as the Clerk of the Superior Court of Ben Hill County upon the filing of a corporate charter.

Specifically, you inquired as to whether you are entitled to charge for the two (2) certified copies of a corporate charter which you are required to furnish by Ga. Code Ann. 22-1820, or if the fees for such copies are included in the fees allowed by Ga. Code Ann. 22-1819. You will note that Ga. Code Ann. 221819 and 22-1820 relate to amendments of a corporate charter and not to the initial incorporation which is covered by Ga. Code Ann. 22-1801 to 22-1813. However, Ga. Code Ann. 221804 and 22-1808 regarding the filing fees and certified copies which a clerk is required to furnish in an initial incorporation are similar to Ga. Code Ann. 22-1819 and 22-1820 regarding amendments.

In construing a statute, the cardinal rule is to look diligently for the intention of the General Assembly in passing the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga.

401
Code Ann. 102-102 (9). Additionally, statutory construction is not permissible when a statute is clear and unambiguous in its terms. New Amsterdam v. McFarley, 191 Ga. 334, 337 (1940).
Thus, with the above rules of statutory construction in mind, an examination of the pertinent statutes is necessary.
Your attention is called to Ga. Code Ann. 22-1804 (Ga. Laws 1937-38, Ex. Sess., pp. 214, 217) which provides, as follows, in regard to the filing fees chargeable by a clerk of a Superior Court upon an initial incorporation:
The applicants for the charter shall thereupon file said petition or declaration ~ith the order of the judge thereon in the office of the clerk of the superior court of the county in which the principal office of the corporation is located and shall concurrently therewith deposit with and pay to said clerk the fees of said clerk for his services in said case, towit: Fifteen cents per 100 words for recording the charter and $5 for other services required of the clerk in connection with the application for the charter.
As you will note, the above section authorizes "Fifteen cents per 100 words for recording the charter and $5 for other services required of the clerk in connection with the application for the charter." By Ga. Code Ann. 22-1808, one of the duties of the clerk in regard to the initial application is as follows:
Upon said declaration being filed with the clerk and the fees being paid, as aforesaid, said clerk shall forthwith deliver to the applicants or their attorney two certified copies of said application for charter, the order of the judge thereon, and the filing of the clerk thereon, and receipt for the costs which have been paid to the clerk.
Therefore, it is abundantly clear that the General Assembly of Georgia intended for the filing fee authorized by Ga. Code Ann. 22-1804 to cover the cost of the two (2) certified copies that the clerk is required to furnish by Ga. Code Ann. 22-1808.
Now, to the two Code Sections about which you have particularly inquired. By Ga. Code Ann. 22-1819 (Ga. Laws 1937-38, Ex. Sess., pp. 214, 221), the following provision is made:
The corporation shall thereupon cause the application, with the order of the judge thereon, to be filed in the office of the

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clerk of the superior court, together with a fee of $,:,, and 15 cents per 100 words for recording the same, and an affidavit that the fee for legal advertising has been paid as is provided in section 22-1805 for charter applications.
Furthermore, by Ga. Code Ann. 22-1820 (Ga. Laws 1937-38, Ex. Sess., pp. 214, 221 ), the following is provided:
The clerk of the superior court shall furnish to the corporation two certified copies of the same and 'of the entries of filing thereon.
You will notice that after the fee of $5 as authorized by Ga. Code Ann. 22-1819, there is not found the words " . . . for other services required of the clerk in connection with the application for charter; . . . " as is found in the above-quoted Ga. Code Ann. 22-1804. However, you will notice that the provisions of Ga. Code Ann. 22-1819 and 22-1820 are both found in the same paragraph of Section 8 of Ga. Laws 1937-38, Ex. Sess., pp. 214, 220-221, thus, clearly indicating that the General Assembly intended for the $5 fee to cover the cost of two (2) certified copies of an amendment.
Therefore, it is my unofficial opinion that you may charge only the $5 fee, plus 15 cents per 100 words and that for said charge you are required to furnish two (2) certified copies.

OPINION 68-282 (Unofficial)

July 11, 1968

You requested that this office furnish you with the statutory

speed limits required by Georgia law for trucks on various types

of highways on the State system.



In the beginning, I would mention that this opinion is written considering only a portion of the laws passed during the 1968 Session of the General Assembly of Georgia. Inasmuch as the complete set of the Section Laws has not been published as of this date, this opinion can deal only with the laws which have been published by the Secretary of State, the Honorable Ben W. Fortson, Jr. If necessary, this opinion will be supplemented to include any laws received in the future which deal with this particular subject.

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It seems that there were three separate Acts passed during the 1968 Session pertaining to Paragraph 3 of Sub-section (b) of Section 48 of the Uniform Act Regulating Traffic on Highways (Ga. Code Ann. 68-1626(b) 3). The three Acts are Act No. lOll, approved April 8, 1968; Act No. 1079, approved April 9, 1968; and Act No. 1262, approved April 12, 1968. Inasmuch as all three Acts deal with the same sub-paragraph, it would appear that Act No. 1262, since it was approved after the other Acts, would repeal by implication Act No. lOll and Act No. 1079. Section 2 of Act No. 1262 provides as follows:
"3. On all highways, which comprise a part of the National System of Interstate and Defense Highways and having not less than 4 traffic lanes, and on State Highway No. 316, the minimum speed shall be 40 miles per hour and the maximum speed shall be 70 miles per hour from one-half hour before sunrise until one-half hour after sunset. At other times the minimum speed shall be 40 miles per hour and the maximum speed shall be 65 miles per hour. The provisions of this Subparagraph shall apply to those highways and roads defined in an Act approved March 7, 1955 (Ga. Laws 1955, p. 559)."
This Act added the last sentence which provides that the subparagraph applies to limited-access highways, as defined in Ga. Laws 1955, p. 559.
Section 3 of Act No. 1262 provides as follows:
"4. Where the total gross combined weight of trucks or truck-tractors and trailers and load in pounds is less than 10,000 pounds, the maximum speed shall not exceed 60 miles per hour; maximum from one-half hour before sunrise until one-half hour after sunset. At other times 50 miles per hour maximum; where the total gross combined weight of trucks or truck-tractors and trailers and load in pounds is between 10,000 and 16,000 pounds, the maximum speed shall not exceed 50 miles per hour; where the total gross combined weight of trucks or truck-tractors and trailers and load exceeds 16,000 pounds, the maximum speed shall not exceed 45 miles per hour. This subparagraph shall not apply to busses: Provided, that no school bus while transporting school--children shall exceed a speed of 40 miles per hour: Provided, however, that busses owned or operated by a street

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railroad or other company engaged in the operation of an urban transit system which are used for the transportation of school children may be operated at speeds in excess of 40 miles per hour provided such speeds are within the maximum speed limits of the municipalities in which such busses are operated."
This Section applies to two-lane roads and merely added the following words after the first sentence: "maximum from one-half hour before sunrise until one-half hour after sunset. At other times 50 miles per hour maximum;". Prior to this amendment, trucks and trailers weighing less than 10,000 pounds were able to travel 60 miles per hour at any hour of the day or night. This Act limits trucks to 50 miles per hour maximum from one-half hour after sunset until one-half hour before sunrise.
Section 3A of Act No. 1262 provides as follows:
"5. On all highways which comprise a part of the National System of Interstate and Defense Highways, and having not less than four traffic lanes, the maximum speed for trucks or truck-tractors and trailers, regardless of weight, shall not exceed 60 miles per hour. However, on all other highways having not less than four traffic lanes, the maximum speed for trucks or truck-tractors and trailers, regardless of weight, shall not exceed 60 miles per hour; maximum from one-half hour before sunrise until one-half hour after sunset, at other times, 50 miles per hour maximum. This subparagraph shall not apply to busses: Provided, that no school bus while transporting school children shall exceed a speed of 40 miles per hour: Provided, however, that busses owned or operated by a street railroad or other company engaged in the operation of an urban transit system which are used for the transportation of school children may be operated at speeds in excess of 40 miles per hour provided such speeds are within the maximum speed limits of the municipalities in which such busses are operated."
This section added the language, "However, on all other highways having not less than four traffic lanes, the maximum speed for true ks or truck-tractors and trailers, regardless of weight, shall not exceed 60 miles per hour; maximum from onehalf hour before sunrise until one-half hour after sunset, at other times, 50 miles per hour maximum." This new provision provides

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that on all othe.r highways, other than highways which comprise a part of the National System of Interstate or Defense Highways, having not less than four traffic lanes, the maximum speed shall not exceed 60 miles per hour in the daytime, i.e., one-half hour before sunrise until one-half hour after sunset. At au other times the truck or truck-tractors and trailers, regardless of weight, have a 50 mile per hour maximum.
Another law indirectly affecting the speed laws is the so-called "Slow Lane Law." Act No. 1034, approved April 8, 1968, adds five new paragraphs to Section 55 of the Uniform Act Regulating Traffic on Highways (Ga. Code Ann. 68-1633). The Act provides in substance that no two vehicles shall impede the flow of traffic by traveling side by side at the same time in adjacent lanes. However, this provision does not apply when vehicles travel side by side in adjacent lanes because of congested traffic conditions. Further, the driver of an overtaken vehicle in the left or center lane shall give way to the right on audible signal when this can be done with maximum safety. The Highway Department shall erect and maintain suitable signs to give adequate notice of this Act.
As noted at the beginning of this opinion, this office will supplement the opinion, if necessary, to reflect any other law dealing with this particular subject.

OPINION 68---283 (Unofficial)

July 12, 1968

You requested an opinion as to whether the Georgia Youth Council could establish dues for its membership to be used to help reimburse the officers of said Council for the expenses incurred in performing activities of the Council.

Specifically, you made reference to section I (e) (Ga. Laws 1966, p. 601) and inquired as to whether said subsection applies only to State funds or if the subsection also applies to funds which could be obtained from membership dues.

The cardinal rule in construing a statute is to look diligently for the intention of the General Assembly in passing the legislation. Lewis v. City of Smyrna, 214 Ga. 323 ( 1958) and Ga. Code Ann.

406
102-102(9). Furthermore, statutory construction is not permissible when a statute is clear and unambiguous in its terms. New Amsterdam v. McFarley, 191 Ga. 334, 337 (1940).
Thus, with the above rules of statutory construction in mind, an examination of the statute creating the Georgia Youth Council IS necessary.
By Ga. Laws 1966, pp. 601, 603 (Act No. 585, Section 1 (e)) the following provision is made in regard to compensation of members and officers of the Georgia Youth Council:
The members and officers of the Council shall not be entitled to compensation for service as a member or officer or for reimbursement of any expenses incurred in the performance of their duties.
Thus, it is my unofficial opinion that the General Assembly specifically intended that the members of the Council serve without receiving any compensation for their services from any source in view of the above-specific language, i.e., " . . . shall not be entitled . . . ." Additionally, it is quite clear that the General Assembly intended for the officers of the Council to receive no reimbursement for " ... any expenses incurred in the performance of their duties."
In your letter you inquired as to whether this provision applies only to State funds or if same would also apply to membership dues collected from members of the Council. In view of the clear and unambiguous language utilized, it is my unofficial opinion that the General Assembly provided that the officers not be authorized to receive any reimbursement from any source whatsoever.
The above opinion is reinforced by the contents of Ga. Laws 1966, pp. 601, 603-604 (Section 2) which provides:
Any clerical assistance, postage and supplies that may be necessary to enable the Georgia Youth Council to plan and coordinate its meetings or otherwise carry out its duties and responsibilities shall be supplied by the Division for Children and Youth, and said Division for Children and Youth is hereby authorized to provide such assistance, postage and supplies for said Council.
It is my unofficial opinion that by the above Section, the

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General Assembly of Georgia provided for the necessary clerical assistance, postage and supplies in order that the Council could function, but specifically intended that the officers receive no reimbursement for their expenses from any source whatsoever so that when a member decided to accept a position as an officer he would know that he would not be reimbursed for any expenses incurred because of such a position.

0 PIN I0 N 68---284

July 15, 1968

This is in reply to your recent request for my opinion on the following question:

"Can each of the institutions of the University System establish a trust fund account into which all fees received for the rendering of public services such as conferences and seminars for adults, special studies and consultation are deposited and from which all costs incurred for such services are paid including compensation to faculty for instruction and lecture work?"

The Board of Regents is charged by law with the responsibilities of receiving, in one lump sum, all appropriations made for the use of the University System and allocating and distributing such funds among the institutions under their control. Ga. Laws 1933, p. 61 (Ga. Code Ann. 32-119). In addition, the Board of Regents has the general powers to elect or appoint professors and fix their compensation; to establish and organize schools of learning or art as may be useful to the State; and to exercise any other power usually granted to such institutions which is not in conflict with the Constitution and laws of the State. Ga. Laws 1931, pp. 7, 24 (Ga. Code Ann. 32-121). See also Villyard v. Regents, 204 Ga. 517 (1948).

I am aware of no Constitutional provision or statute which would preclude the Board of Regents from establishing a trust fund or any other form of compensation for its own employees for performing educational work beneficial to the State. Accordingly, I believe that the question posed should be answered "yes," with the proviso that the compensation program be instituted or approved by the Board of Regents.

408

OPINION 68-285 (Unofficial)

July 16, 1968

This is in reply to your recent letter regarding requests for absentee ballots. Because the Democrats and Republicans will hold simultaneous primaries this year, it is impossible to honor requests for absentee ballots when the person making such request does not specify his party preference, and you have asked how to handle such a situation.

At the outset, let me point out that the problem has already been recognized by the Secretary of State, and affirmative action has been taken. He has informed the appropriate officials in the Department of Defense of the problem and they have informed him that the Department of Defense will make every effort to disseminate the information throughout the armed services. Additionally, I am sure that the political parties themselves are aware of the problem and that they will take whatever action they feel necessary to publicize or otherwise remedy the matter.

Unfortunately, the Election Code does not appear to have provided a legal solution to the problem, and I can only suggest that, when you are faced with the situation, you make every reasonable effort to ascertain from the elector his choice of party in time for him to receive his ballot and cast his vote. If the request is received too late, you might consider sending a letter to the elector explaining why you were unable to honor his request.

OPINION 68-286 (Unofficial)

July 16, 1968

This is in reply to your recent request for information relative to the inapplicability of pre-conviction incarceration to satisfaction of a sentence. The laws of this State are explicit in providing that a sentence upon conviction of a criminal offense shall begin to run from the date of the sentence provided that the person convicted is confined in jail or otherwise incarcerated as of the date of sentence and has no appeal or motion for a new trial pending. Ga. Code Ann. 27-2505 (1933), as amended. Further, there is no Federal law applicable to the states which in any way affects the Georgia practice.

409

0 PIN I0 N 68-287 (Unofficial)

July 16, 1968

This is in response to your request for an opinion as to whether or not House Bill No. 1127, 1968 Session of the Georgia General Assembly, supersedes that portion of Ga. Code Ann. 24-2739 which requires clerks of superior courts to make the remittances to the Retirement Fund therein set forth. Apparently, the clerk of the Superior Court of Sumter County insists that House Bill No. 1127 requires him to pay all funds to the county treasurer, including those remittances required by Ga. Code Ann. 24-2739 to be made to the Retirement Fund.

House Bill 1127 does not, indeed cannot, repeal or supersede Ga. Code Ann. 24-2739 insofar as the latter requires remittances to the Board of Commissioners of the Superior Court Clerks' Retirement Fund.

An Act of the General Assembly never will be so construed as to make it violative of the Constitution unless it is plain and manifest from the terms of the Act that a construction having that effect was intended by the General Assembly. Thus, when an Act is capable of two constructions, one making it violative of the Constitution and the other making it consonant therewith, the latter construction will be adopted by the Courts. Park v. Candler, 113 Ga. 647(3) (1901). The Uniformity Clause of the Georgia Constitution, Ga. Code Ann. 2-401, long has been interpreted by the Supreme Court of Georgia to mean that a general law may be repealed or modified by another general law but may not be repealed or modified by a special or local law. Stewart v. Anderson, 140 Ga. 31, 32 (1913). Under a proper application of those rules, House Bill No. 1127, Ga. Laws 1968, p. 2071, which clearly is a local bill, should not be construed as superseding those portions of Ga. Code Ann. 24-2739 requiring remittances to the Board of Commissioners by the clerk of the Superior Court of Sumter County, Georgia.

OPINION 68---288

July 16, 1968

You raised several questions in regard to the initiation of certain special pilot projects of the Work Incentive Program as established by Public Law 90-248.

410
In your letter, you requested an answer to the following questions:
l. Is the proposed Work Incentive Program Project a 'new program or activity' within the meaning of Section 53 of the General Appropriations Act of 1968 or is it a 'special pilot project' within the meaning of Section 45 of the General Appropriations Act of 1968 designed solely to continue the current Title V Programs operated since 1965 by the State Department of Family and Children Services under authority and fun.ding of Title V, Economic Opportunity Act (Public Law 88-452, approved August 20, 1964)?
2. Is Georgia Code Section 99-146 'in conflict' with the General Appropriations Act of 1968 and was it, in effect, repealed by that enactment or is it, in fact, a valid exception to the provisions of the State Budget Law and the General Appropriations Act of 1968?
3. If Georgia Code Section 99-146 is a valid exception to the State Budget Law and the General Appropriations Act of 1968, can its authority be invoked by the State Director of the Department of Family and Children Services to make available the State of Georgia's 20 percent of the cost of the proposed Work Incentive Program Project?
4. If the authority of Georgia Code Section 99-146 can be invoked in this instance, is this action subject to the approval of the State Budget Officer and/or Director of the Budget and, if so, to what extent?
5. If the proposed Work Incentive Program Project is a continuation of the current Title V Programs of the State Department of Family and Children Services and if Ga. Code Ann. 99-146 is a valid exception to the State Budget Law and the General Appropriations Act of 1968, can the State Budget Officer andjor Director deny the carry-over of funds made available by appropriation to the State Department of Family and Children Services, for the purpose of continuing these programs?
According to the information in your letter, Public Law 90-248, the Social Security Amendments of 1967, requires each state, to begin Work Incentive Programs (sometimes hereinafter referred

411
to as WIN Programs) by July 1, 1968, unless prevented from doing so by state law, and regardless of state law, such a program must be initiated no later than July 1, 1969. The WIN Program is to be administered by the State Labor Department and the funding for same will be an 80 per cent contribution from the Federal Government with the remaining 20 per cent coming from each state through its Welfare Department.
Pursuant to the authority in Public Law 90.:.248, the 1968 General Assembly of Georgia prohibited by law the initiation of any WIN Program except for studies or special pilot projects during fiscal 1968-69 by the following proviso which was added to Section 45 of the General ARpropriations Act (Ga. Laws 1967, p. 41), by Ga. Laws 1968, pp. 146, 180:
Provided, however, that work incentive programs, as provided for by Public Law 90-248, Section 204, shall be limited to studies or special pilot projects, and not projects which are Statewide in scope.
Furthermore, according to the information in your request, the Georgia State Labor Department and the Georgia State Department of Family and Children Services (the State Welfare Department with the provisions of Public Law 90-248) have submitted a proposal to the United States Departments of Labor and Health, Education and Welfare for the initiation of a special pilot project of the Work Incentive Program. The proposal is that the three (3) Title V Work Experience and Training Programs of the State Department .of Family and Children Services in Chatham, Muscogee and Richmond Counties which previously have been funded under the Economic Opportunity Act of 1964 be continued as WIN Programs.
You requested that the State Budget Officer transfer $170,000.00 of the funds appropriated to "Personal Services" of the State Department of Family and Children Servi_ces to "Operating Expenses" and permit said sum to be carried forward to Fiscal 1969 in order that the State Department of Family and Children Services could supply the State's portion (20 percent) of the cost for operating the above-described special pilot projects.
As shown by the memorandum dated May 17, 1968, which you attached to your request letter, the State Budget Officer denied your request based on that portion of Section 53 of the General

412
Appropriation Act, as amended (Ga. Laws 1968, pp. 146, 190) which provides that:
... no funds whatsoever shall be transferred for use in initiating or commencing any new program or activity not currently having an appropriation, nor which would require operating funds . . . beyond the current biennium, . . . .
Additionally, the State Budget Officer stated in the abovementioned memorandum that " . . . it has been the policy of the Budget Bureau to limit appropriation carry-overs to the program or function for which an appropriation is made."
Finally, the Budget Officer concluded that "In view of the above, we will be unable to carry forward the $170,000.00 surplus as requested."
Now, to answer the specific questions raised in your request. In answer to Question No. l, it is my official opinion that the WIN Program is, within the Language of Section 53, supra, a " . . . new program or activity not concurrently having an appropriation
"
As you know, the cardinal rule when 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). Furthermore, in statutory construction, language that is clear and unambiguous is not subject to statutory construction. New Amsterdam Casualty Company v. McFar/ey, 191 Ga. 334, 337 (1940).
In my opinion, it is clear that the intent of the 1968 Legislature was to authorize and appropriate for studies or special projects of the Work Incentive Program during the fiscal year 1968-69, but not during the fiscal year 1967-68. Therefore, the WIN Program as authorized by Ga. Laws 1968, pp. 146, 180 is a " . . . new program or activity not concurrently having an appropriation . . ." under the 1967-68 Appropriations Act, since the studies or special pilot projects have no appropriations prior to fiscal year 1968-69.
In your second question, you inquire into the affect that Ga. Code Ann. 99-146 (Ga. Laws 1961, pp. 222, 223) has upon this problem. Ga. Code Ann. 99-146 provides that:
Any funds which are made available by appropriation to the

413
State Department of Family and Children Services for matching Federal funds shall be available to supply the State portion of expenditures for general assistance programs, medical assistance programs, or any other type welfare programs provided for by the Federal Government which benefit the citizens or residents of this State.
Since the proviso found in the amendment to the General Appropriations Act provides that Work Incentive Programs under Public Law 90-248, Section 204, are to be limited to studies or special pilot projects, it is my official opinion that the above Ga. Code Ann. 99-146 is not applicable to the question of the transfer of funds about which you have inquired.
As stated above, the cardinal rule in statutory construction is to determine the intention of the legislature, but when the statutory language is clear and unambiguous, statutory construction is not appropriate. Therefore, it is my official opinion that the legislature, in clear and unambiguous language, provided that Work Incentive Programs were to be limited in fiscal 1968-69 to " . . . studies or special pilot projects . . . ." By necessary implication, it is also clear that the legislature intended such studies or special pilot projects to be accomplished only through use of funds appropriated for such use during fiscal 1968-69 and not from the transfer of funds that were originally appropriated for use in some other areas during fiscal 1967-68.
The above opinion is reinforced when consideration is given to the legislative history of the Work Incentive Program. The Congress of the United States provided in Public Law 90-248, Sec. 204(c)(1) (the 1967 Amendments to the Social Security Act) that:
The amendment made by subsection (b) [Public Law 90-248, sec. 204(b)] shall in the case of any State be effective on July l, 1968, or if a statute of such State prevents it from complying with the requirements of such amendment on such date, such amendment shall with respect to such State be effective on July 1, 1969; except such amendment shall be effective earlier (in the case of any State), but not before April 1, 1968, if a modification of the State plan to comply with such amendment is approved on an earlier date.
The 1967 Amendments to the Social Security Act were

414
approved on January 2, 1968, by the President of the United States. The "mendments to the General Appropriations Act for Georgia (Ga. Laws 1968, pp. 146, 180) containing the proviso in regard to Work Incentive Programs were approved on March 8, 1968, by the Governor of Georgia. Therefore, it is reasonable to assume that the General Assembly of Georgia had knowledge of the above time provisions as to the Work Incentive Program and by the clear and unambiguous language of Section 45 of the amendments to the General Appropriations Act intended that Georgia would, by statute, b.e prevented from complying with Public Law 90-248, Sec. 204(c)(1) for such Work Incentive Programs prior to July 1, 1969.
Thus, with that obvious intention shown, it is my official opinion that it was the legislature's intention not to have funds transferred from fiscal 1967-68 to fund what the legislature had funded by an appropriation in the appropriations for fiscal 196869. Thus, in answer to your second question, it is my official opinion that Ga. Code Ann. 99-146, as amended in 1961, is not applicable to the transfer about which you have inquired.
An answer to your third (3rd), fourth (4th), and fifth (5th) questions would be based upon an interpretation of the applicability of Ga. Code Ann. 99-146 to the situation under consideration. Therefore, since it is my official opinion that said section 99-146 is not applicable, an answer to your third (3rd), fourth (4th), and fifth (5th) questions is not necessary.

OPINION 68-289 (Unofficial)

July 16, 1968

This is in reply to your letter regarding the legality of expenditures by the Bibb County Board of Education for football uniforms and equipment. You state that this expenditure is made on behalf of junior high school athletic programs and used in intramural contests as well as in games between the different schools within the Bibb County School System. You further indicate that the funds expended by the Board may have been derived from sources other than the "common school fund." It is recalled, of course, that your letter is in response to ours to the State Auditor, wherein we stated that "based upon the facts set forth in the report" (i.e. the audit report) we agreed with his view

415
that the use of the common school fund to purchase football uniforms was unlawful.
It is obvious, of course, that when we give legal opinions to state officials they must be predicated upon the facts as given to us or as they appear from the information we are given. Thus with regard to your question as to whether the funds expended by the Bibb County Board of Education for football uniforms were in fact a part of the "common school fund" we express no opinion. This presents mixed question of law and fact which we are not in a position to resolve. Nor are we in a position to factually know the exact use of the football uniforms and equipment in question.
What we would say is that we consider the final paragraph of the opinion to which you refer in connection with "band uniforms" (i.e. Op. Atty. Gen. 1963-65, p. 397) to be sound law. If football uniforms and equipment are purchased for the use of a school team engaging in athletic contests as an extracurricular activity, the use of school funds to obtain the same seems to us to be clearly illegal. If, on the other hand, such uniforms and equipment are used exactly as ordinary gym clothing, that is to say used by the students generally as an integral part of their credit earning physical education courses and during regular school hours, it is possible that the courts might construe the expenditure to be proper. I use the words "might construe" advisedly in that even here I find some difficulty in seeing how the use of school funds to purchase football equipment and uniforms (which we all know to be expensive) could ever be justified as an expenditure for "educational purposes," particularly in view of the fact that the Supreme Court of Georgia has only recently pointed out that an expenditure of school funds in support of the school lunch program is not an expenditure "for educational purposes." See Wright v. Absalom, 224 Ga. 5 (1968).

OPINION 68---290 (Unofficial)

July 17, 1968

This is in response to your request as to whether the Court Reporter for the Oconee Judicial Circuit is precluded from receiving the per diem compensation for court reporters taking testimony in criminal cases as provided in Ga. Code Ann. 243104, by a special Act pertaining to and fixing the compensation

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for the Court Reporter for the Oconee Judicial Circuit (Ga. Laws 1953, Nov.-Dec. Sess., p. 2352).
Ga. Code Ann. 24-3104 (Ga. Laws 1959, p. 61) provides for per diem compensation by counties for court reporters of superior and city courts in criminal cases where testimony is required by law to be recorded. The Code Section further states:
"Provided, further that all laws applicable to any circuit or counties of this State governing compensation of court reporters therein, heretofore enacted by the General Assembly, shall be, and remain in full force and effect.
"Provided, further, that this section shall not effect (sic) the compensation of the court reporter in any county or circuit of this State in which the court reporter is now paid a straight salary for his duties, or in any county or circuit of this State which may hereafter provide a straight salary for such court reporter for his services."
Ga. Laws 1953, Nov.-Dec. Sess., p. 2352 specifically provides a straight salary of $275 per month for the reporter of the Oconee Judicial Circuit, said salary to be apportioned in a prescribed manner among seven counties. This special Act further states:
"Provided the payments aforesaid shall be in lieu of compensation now fixed by law or that may hereinafter be fixed by law for attending the superior courts, inquests and inquiries, and for taking and transcribing the evidence in criminal cases, and in inquests and inquiries, and for filing the same."
Since this special Act expressly provides that the $275 straight monthly salary shall be in lieu of other compensation fixed by law for the Oconee Judicial Circuit Court Reporter in criminal cases, and since the 1959 Act preserves and in no way affects the compensation of any reporter on straight salary in any circuit, in my unofficial opinion the Court Reporter for the Oconee Judicial Circuit is precluded by the 1953 special Act from receiving the per diem rate set out in Ga. Code Ann. 24-3104 (Ga. Laws 1959, p. 61).

OPINION 68-291 (Unofficial)

417 July 17, 1968

This is in reply to your letter of the 15th, instant. You indicate that the Tattnall County Hospital Authority is selling Revenue Anticipation Certificates (authorized by Ga. Code Ann. 881807) and ask whether this obligation will or can be charged to the total bonding capacity of the county.
My answer is in the negative, based upon Ga. Code Ann. 881808, which pr'ovides that:
. " . . . .. The certificates and other obligations of an
Authonty shall not be, and shall so state on the face thereof, a debt of the city, the county, the State of Georgia, nor any political subdivision thereof, . . . ."
It is further noted that a county Hospital Authority, although created as a public body corporate and politic (see Ga. Code Ann. 88-1803) has no power to levy taxes, but that counties or other political subdivisions are empowered to enter into contracts with such Authorities to secure medical services (including medical care or hospitalization for the indigent sick) and upon so dojng such counties or other political subdivisions are authorized to levy an ad valorem tax not exceeding seven mills, exclusive of all other taxes which they can levy, and may further levy an additional twomill tax for any contractual obligation for the limited purposes of "acquiring, constructing, equipping, altering, modernizing, or repairing projects." See Ga. Code Ann. 88-1812.

OPINION 68-292

July 17, 1968

This refers to your letter and the attached 1967 audit report for the Clinch County Board of Education. In the report you refer to an official opinion of the Attorney General dated December 15, 1959 which ruled that the absence of any provision in Ga. Code Ann. 32-904 for reimbursement to school board members for their travel expenses meant that the per diem compensation of $10 provided therein was to be all inclusive and no other compensation could be authorized. Based upon this opinion you concluded that the payment of travel expenses to board members of the Clinch County School System during 1967 was illegal.

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While I believe that the 1959 opinion was a correct analysis of the law as it then existed, I believe that it has been superseded by subsequent amendments to this Code Section. As now written, Ga. Code Ann. 32-904 provides:
"32-904. Compensation of members.- The General Assembly is hereby authorized to provide the compensation of members of county boards of education by local Act. In any county for which no legal Act is passed, members of the county board of education shall (when approved by the county board of education affected) receive a per diem of $20 for each day of attendance at meetings of the board, and while meeting and traveling within or without the State as a member of a committee of the board on official business first authorized by a majority of the board, plus reimbursement for actual expenses necessarily incurred in connection therewith. The accounts for such service and expenses shall be submitted for approval to the county superintendent of schools. In all counties the compensation of members of county boards of education shall be paid only from the local tax funds available to county boards of education for educational purposes: Provided, however, that nothing herein contained shall affect a county board of education or school system created prior to the Constitution of 1877." (Emphasis added.)
In light of the amendments incorporated in the Code section as it now appears, I believe that reimbursement to board members for their travel expenses is a proper expenditure.

OPINION 68-293 (Unofficial)

July 18, 1968

This is in reply to your letter dated July 2, 1968, asking our opinion regarding the location at which a person may vote and, also, our opinion regarding the boundaries of the 37th Georgia Senatorial District.

You haye asked whether a person may vote in the election district containing his or her business address. Ga. Code Ann. 34-1310(c) provides that except for persons casting absentee ballots and for persons in counties of 40,000 persons or less who may cast their votes in the election district containing the county

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courthouse, no person shall vote at any primary or election at any polling place outside the election district in which he resides. "Residence" under the Election Code means domicile. Ga. Code Ann. 34-l03(aa). The residence of a person shall be held to be that place in which his or her habitation is fixed. Ga. Code Ann. 34-632(a). Further, if a man has his family living in one place and does business in another, the former shall be considered his residence as long as he resides with his family and does not take up permanent abode elsewhere. Ga. Code Ann. 34-632(g).
In view of the foregoing, I believe that a bu~iness address, in and of itself, does not fulfill the residency requirements of Ga. Code Ann. 34-13lO(c) and that an otherwise qualified elector may vote in the election district containing his business address only when such district also contains his residence as defined by the Election Code. Similarly, and for the above reasoning, where a person running for office is required to be a resident of the district from which he is running, his business address, in and of itself, would not be sufficient to fulfill the residency requirement.
In your third question, regarding the boundary lines of Senatorial District No. 37, you ask whether the boundary lines are "firm by Federal edict." On May 18, 1968, in the United States District Court for the Northern District of Georgia, Atlanta Division, a Three-Judge District Court entered a Final Judgment approving the 1968 Reapportionment Plan lpf the Georgia Senate (Ga. Laws 1967, p. 159, as amended by Ga. Laws 1968, p. 36) and House of Representatives (Ga. Laws 1968, p. 209). Thus, the boundary lines were established by virtue of the legislative action of the Georgia General Assembly as approved by the above-mentioned Court.
Your fourth question concerned corrections which are necessary in the legal description of the 37th Senatorial District. An error occurred when Senate District No. 56 was changed from an atlarge District which it is for the 1968 elections, to a specific area which it will be for subsequent elections. In your letter you posed the following question:
"In the event that I am elected as Senator in the General Election, will it be possible to change the lines of my district to keep me within it?"
As you know, the apportionment of the legislature must be

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accomplished by the Georgia General Assembly through the enactment of Reapportionment Acts. Therefore, such a change as you suggest is a matter that addresses itself solely to the legislative process.

OPINION 68-294 (Unofficial)

July 18, 1968

In your letter, you requested an opinion relative to whether a funeral director should remove a dead body before a doctor or coroner has examined it. Further, you wanted to know whether a funeral director would be within the law to "pick-up" a dead body upon the verbal assurance by the doctor or coroner that they had seen the body within "the last few days" and would sign the death certificate later.
Ga. Code Ann. 88-1715 provides, in part, that:

"(b) The funeral director or person acting as such who first assumes custody of a dead body shall obtain the personal data, prepare the certificate, secure the signatures required by the certificate, and file it with the registrar. He shall obtain the personal data from the next of kin or the best qualified person or source available. He shall obtain medical certification of the cause of death.
"(c) The medical certification portion of the death certificate shall be completed and signed within 48 hours after death by the physician or osteopath in charge of the patient's care for the illness or condition which resulted in death except when inquiry is required by the Post Mortem Examinations Act [Chapter 21-2].
"(d) When death occurred without medical attendance as set forth in subsection (c) above or when inquiry is required by the Post Mortem Examinations Act, the proper person shall investigate the cause of death and shall complete and sign the medical certification portion of the death certificate within a reasonable time after being notified of death."
Ga. Code Ann. 21-205 provides that coroners shall require a post mortem examination and/ or autopsy to be performed and inquest in their respective counties as follows:

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"(I) When any person shall die as the result of violence, or suicide, or casualty, or suddenly when in apparent health, or when unattended by a physician, or within 24 hours after admission to the hospital without having regained consciousness, or in any suspicious or unusual manner. ..."
A "post mortem examination," which is to be performed in the instances described above, is defined as "an examination after death and shall include an examination of the dead body and surroundings by the medical examiner and peace officer in charge, but shall not include disection of the body for any purpose."
Considering the above Code sections in relation to your question, it is my unofficial opinion that:
I. When a post mortem examination would be required under the circumstances set forth in Ga. Code Ann. 21205, the funeral director should not remove the body until instructed to do so by the coroner.
2. It is the duty of the funeral director who first assumes custody of the dead body to obtain medical certification of the cause of death. Said medical certification should be completed and signed within 48 hours after death by the physician or osteopath in charge of the patient's care for the illness or condition which resulted in death except when inquiry is required by the Post Mortem Examination Act.
3. If a post mortem examination is not required under the circumstances and the person dies without medical attendance as defined in Ga. Code Ann. 88-1715(c), the medical certification of death should be signed within a reasonable time by the proper person (physician, osteopath, or medical examiner, as the case may be) who shall investigate the cause of death.

OPINION 68--295

July 18, 1968

You have requested my official opinion concerning three questions arising under the new Georgia Detainer Act, H.B. 1237, Act No. 1058. The three questions you have posed are as follows:

"1. Once a detainer has been stricken and dismissed from

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the records of the State Board of Corrections for failure to bring the accused to trial, can the detainer be refiled against the inmate while he is serving his present sentence? In the event the inmate is c discharged and subsequently returns to our jurisdiction on another sentence, could the initial detainer be refiled?
"2. It is stipulated that trial is to be had within two terms of court after receipt, by the appropriate prosecuting officers and court, of the inmate's request for final disposition. If the court of jurisdiction is in session at that time, is this term included as one of the two terms in which trial is to be had?
"3. Is the Solicitor General the only individual who can place a detainer on an inmate?"
OPINION
1. Although the Act does not specifically prohibit the refiling of detainers against an inmate once a previous detainer has been stricken and dismissed from the records of the State Board of Corrections as provided in Sections 33.10(d) and 33.11 of the Act, the General Assembly's purpose behind such legislation would prohibit refiling detainers that had been dismissed under the above subsection; however detainers that are dismissed pursuant to Section 2 of the Act for failure to conform to the provisions of the Act could be refiled. Since the purpose of the Act is to enable an inmate to qualify himself for parole consideration under the sentence he is presently serving, a detainer could be refiled on a subsequent sentence if there was a lapse of time between the new and previous sentence, during which the detainer was filed and dismissed.
2. The phrase "within two terms of court" means two complete terms of the petitioned court. If the request for disposition of an indictment, accusation or information is received during a term of court, two more complete terms must lapse before a detainer could be stricken by the Board.
3. Only a Solicitor or Solicitor General of the constitutional courts of this State may file a detainer with the Board.
DISCUSSION
The Georgia Detainer Act provides two general ways in which a detainer may be dismissed by the Board of Corrections. Section

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33.10(d) of the Act provides that if a request for final disposition of a pending indictment " . . . is made by the inmate pursuant to Section 33.10(a), and a trial is not had on any of these within two terms of court after receipt of the request by the appropriate prosecuting officer, . . . all detainers based upon such pending indictments . . . shall be dismissed and stricken from the records of the State Board of Corrections." (Section 33.11 provides a similar means for striking a detainer.) Section 2 of the Act provides that "the State Board of Corrections shall strike and dismiss from its records (on January 1, 1969) all detainers filed by authorities of the State of Georgia or 6f any political subdivision thereof which do not conform to the provisions of this Act."
The Supreme Court of North Carolina, in State v. White, 270 N.C. 78, 153 S.E.2d 774,776 (1967), interpreted their detainer statute as follows:
"The primary purpose of [the statute] is to provide a prisoner with a means by which he may require the State to try all the criminal charges against him to the end . . . that he may plan for his release when the debt has been satisfied. The presence of a detainer in his prison files jeopardizes his chances for parole, for proper good behavior credits, and for work release."
In my opinion, Georgia's Act has a similar purpose. The Georgia courts have not had an occasion to interpret such an Act, but our courts have set forth certain principles of statutory construction. In construing a statute the courts have held that the intent of the legislature should be sought for, keeping in view of old law, the evil and the remedy behind the new statute. Wharton v. State, 67 Ga. App. 545, 21 S.E.2d 258 (1942); Jenkins v. State, 93 Ga. App. 360, 92 S.E.2d 43 (1956); Tomlinson v. Sadler, 99 Ga. App. 482, 109 S.E.2d 84 (1959); and Ga. Code Ann. 102102(9). The legislative intent should be carried into effect even though it may be contrary to the literal sense of the terms of a statute. Erwin v. Moore, 15 Ga. 361 (1854) and Oxford v. Carter, 216 Ga. 821, 120 S.E.2d 298 (1961). A statute will not be construed as absurd and meaningless unless its language so compels. State v. Camp, 189 Ga. 209, 6 S.E.2d 299 (1940) and Scott v. Mayor and Council of Mount Airy, 186 Ga. 652, 198 S.E. 693 (1938).

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Because a detainer bars an inmate from being considered for parole, the Georgia Detainer Act provides a vehicle by which this obstacle may be surmounted opening the way for possible parole consideration. The Act does not work to relieve an inmate of his criminal accountability; and the inmate is still subject to prosecution under a pending indictment, accusation or information, even if a detainer based on such is dismissed under the provisions of this Act. Under the existing law an inmate has the right to demand trial and have pending indictments disposed of, but he does not have the r!ght to remove detainers. See Reid v. State, 116 Ga. App. 640 (1967). If a prosecuting officer is permitted to refile a detainer that has been dismissed under Sections 33.10(d) or 33.11 of the Act, the request of an inmate for disposition of a pending indictment would be rendered meaningless. Although the Act does not specifically prohibit the refiling of such detainers, it is my opinion that such refiling would be contrary to the purpose of the Act and therefore should not be allowed during the period of the inmate's current incarceration.
Detainers that are dismissed under Section 2 of the Act present a different question. These detainers are dismissed because they were not filed by the prosecuting officer in proper form under the Act. A dismissal under this section deprives the inmate of no rights and therefore the prosecuting officer should be allowed to correct his error and refile the detainer without prejudice in compliance with the provisions of the Act.
If an inmate leaves the jurisdiction of the Board of Corrections and returns under another sentence, the inmate would start afresh to accumulate good time and parole consideration. Under these circumstances, it is my opinion that a detainer that had been dismissed under his previous sentence could be refiled and would not hinder the purposes of the Act, as discussed above.
The second question is based on the following language found in the Detainer Act at Section 33.10(d):
" ... If trial is not had on any indictment . . . upon which a detainer has been based within two terms of court after the receipt by the appropriate prosecuting officers and court ..."
Where a law is susceptible of more than one construction, it must be given that construction which is most equitable and just.

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Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950), conformed to 83 Ga. App. 158, 63 S.E.2d 4 (1951). A statute is not to be given a construction which would lead to strained, unnatural and inequitable results unless it is capable of no other interpretation. City of Atlanta v. Barrett, 102 Ga. App. 469, 116 S.E.2d 654 (1960).
With this in mind, the question is whether the phrase "within _ two terms of court after receipt" means two complete terms of
court after the request for disposition is received. The courts establish a calendar of cases that are to be tried in each term. It would be unreasonable to require disposition of a pending indictment until it could be placed on the calendar of the Court.
Therefore, if the request was received during a term of court, the court would have two more complete terms in which to act upon the request. The language of the Act also seems to support this conclusion because it provides that the court shall have two terms after the receipt of the request, which could be interpreted as permitting two full terms of court to pass before the detainer could be dismissed.
In answer to your third question, the prosecuting officers of the constitutional courts of this State are known as Solicitors and Solicitors General. These would include the prosecuting officers of both the superior courts as well as those of other constitutional courts, such as city courts. Therefore a Solicitor or Solicitor General is the only person who may file a detainer.

OPINION 68-296

July 19, 1968

This responds to your request for an official opinion as to whether local school systems may invest monies from the common school fund in United States Treasury Bills and Notes or whether such investments are forbidden by Ga. Code Ann. 32-942, which provides, in relevant part:
" . . . said funds . . . shall not be in vested in bonds of this State, or in any other bonds or stocks, except when investment is necessary to carry out the conditions of an endowment, devise, gift, or bequest. . . ."

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OPINION
Except in those instances where the investment of a part of the common school fund in United States Treasury Bills and Notes is necessary to carry out the conditions of an endowment, devise, gift, or bequest, the monies in such fund may not be invested in such Bills or Notes.
DISCUSSION
The narrow legal question presented is the meaning of the words " ... or in any other bonds... " as used in Ga. Code Ann. 32-942.
It is arguable that United States Treasury Bills and Notes are not "bonds" within the popular meaning of that word. In re Maroney's Estate, 311 Pa. 336, 166 A. 914 (1933). The following facts with reference to these obligations were obtained from the Atlanta Federal Reserve Bank: Treasury Bills are bills of exchange drawn on the United States. They are issued weekly and are payable in 91 or 182 days, 9 months, or one year. They bear no interest. Profit is the difference between the face value and the discount price set by competitive bidding. Treasury notes are governmental obligations which bear interest and have maturity dates of one to seven years. Both are distinguishable from most federal bonds in that they are shorter term investments than most bonds. The three types of investments are identical in that, generally speaking, they may be liquidated before maturity and if sold before maturity the price they bring will be dependent upon market fluctuations at the time of sale. All three are obligations of the United States to pay a sum certain.
Whether or not a legal distinction should be drawn between bills, notes and bonds depends upon the precise legal tssue involved and the purpose of the relevant provisions of law. Cosgro v. Quinn, 219 Ga. 272 (1963), Denver v. Horne Savings Bank, 236 U.S. 101 (1914), U.S. v. Leslie Salt Co., 350 U.S. 383 (1955). It is difficult to determine the exact purpose of the prohibition set forth in Ga. Code Ant\. 32-942. Whatever that purpose is, it has been departed from in the instance of county school systems of counties having a population in excess of 500,000. Ga. Laws 1961, p. 2862.
I am of the opinion that the public policy which the General Assembly is advancing by and through this Act is a prohibition

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against investing the common school fund in obligations which fluctuate in value according to the rise and fall of the market such that the sum invested might not be fully recoverable when it is necessary or desirable to liquidate the obligations in order to expend the monies for some proper educational purpose. Since United States Bonds, Bills and Notes all are subject to such fluctuations, it would appear to me that a proper reading of Ga. Code Ann. 32-942 would include all three forms of obligations within the phrase "... or in any other bonds. . . ."
One should realize that the answer I have suggested herein is merely my opinion and, needless to say, is one with which some persons will not agree. However, those who would disagree should be mindful that when, as 'in this instance, the question is one of the proper investment of public monies, any liberalization of investment powers should be specifically provided for by the General Assembly.

OPINION 68-297 (Unofficial)

July 19, 1968

You asked me to look into the Federal "wage and hour" laws and also the Federal "excise tax" laws in order to determine the extent, if any, to which such laws are applicable to the Stone Mountain Memorial Association.

With regard to your initial question of the applicability of the "wage and hour" provisions (i.e. 29 U .S.C. A. 206, 207) of the "Fair Labor Standards Act," 29 U.S.C.A. 201-219, to the Stone Mountain Memorial Association, I am of the opinion that the Association is a political subdivision of the State of Georgia and hence exempt from the Act. 29 U.S.C.A. 203(d) expressly excludes the states and their political subdivisions from the term "employer" as used therein, and the only real question is whether the Stone Mountain Memorial Association is a "political subdivision" of the State of Georgia. For the purposes of the Fair Labor Standards Act, I believe the answer to this question must be in the affirmative. In Commissioner v. Shamberg's Estate, 144 F.2d 998 (2d Cir. 1944), cert. den .. 323 U.S. 792, 65 S.Ct. 433, 89 L. Ed. 631 (1945), question arose under the income tax Ia ws as to whether the Port of New York Authority, created jointly by the states of New York and New Jersey, to maintain bridges,

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tunnels and terminals, was a "political subdivision. ln holding that the Authority was a "political subdivision" of the two states the court stated that the term was broad and comprehensive, including:
" ... any division of the State made by the proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out a portion of those functions of the State which by long usage and the inherent necessities of government have always been regarded as public." 144 F.2d, supra, at 1004.
Subsequently, in Abad v. Puerto Rico Communications Authority, 88 F. Supp. 34 (D.C.P.R. 1950), the Shamberg decision was relied upon in holding that the Authority there involved was a "political subdivision" within the meaning of 29 U.S.C.A. 203 (d). In view of the fact that the Stone Mountain Memorial Association is "a body corporate and politic" and an "instrumentality and public corporation of the State of Georgia," designed to make a Confederate Memorial and public recreational area available for the general public and perform an "essential governmental function" in carrying out such purposes, see Ga. Laws 1958, pp. 61, 63-64, 79, I believe the courts would hold it to be a "political subdivision" of the State of Georgia for the purposes of the Federal "Fair Labor Standards Act."
Your second question, relating to the applicability of the Federal excise tax laws to the Association's operations, is more difficult to answer. There is no blanket exemption of the states or their political subdivisions from the various excise taxes imposed by federal statutes, and as stated in Allen v. Regents of the University System of Georgia, 304 U.S. 439, 451 (1938):
"When a State embarks in a business which would normally be taxable, the fact that in doing so it is exercising a governmental power does not render the activity immune from federal taxation."
In that case the Supreme Court upheld the application of a Federal excise tax on admissions to football games of Georgia Tech and the University of Georgia.
The difficulty in application, however, lies in the fact that inasmuch as "excise taxes" are taxes on particular activities, each such tax and each activity now or hereafter engaged in by the

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Association must be individually considered to determine (I) whether a tax is imposed on such activity, and (2) if so, whether the particular excise tax statute involved contains an exemption for "political subdivisions" of the states. An example of the sort of activity on the part of the Association which could lead to tax liability under the excise tax laws would be the sale of gasoline to motorists or persons operating motor boats on the lake.
It is hardly feasible, of course, to undertake in this memorandum to review such activity which the Association might conceivably in the future engage in. I might note that the one excise tax which formerly would have been of great concern to the Association has now been repealed. This former tax is the admission tax which was provided for in 4231 of the Internal Revenue Code of 1954. It was repealed in 1965. Excise taxes which previously existed upon the retail sales of jewelry, watches, clocks, hair oils, cosmetics and perfumes have also been repealed.

OPINION 68-298 (Unofficial)

July 19, 1968

This responds to your request for an unofficial opinion as to whether or not the following policies of the State Board of Education are in accordance with Ga. Code Ann. 32-713:

"1. That the bid period for the annual adoptions be from August I to September 15.
"2. That prices bid must be current wholesale prices for the bid period (August I to September 15) based on the publishers' prices for the production year.

"3. That the publisher be requested to offer an exchange price bid.

"4. That the bid price shall be the same from the time of adoption by the State Board of Education for a five-year period.

"5. That a bid be considered responsive only if the bidder has complied with all of the provisions outlined in the invitation to bid.

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"6. That the Department staff review the bid prices of books offered and recommend to the State Textbook Committee those books for which it considers the prices to be exorbitant and therefore a non-responsive bid."
OPINION
I am of the opinion that Ga. Code Ann. 32-713 poses no threat to the validity of the above-quoted policies of the State Board of Education, even if it remains of full force and effect, which is debatable.
DISCUSSION
Ga. Code Ann. 32-703 is based upon a 1937 Act of the General Assembly which provides, in part, as follows:
"All purchases or contracts for purchases shall be made subject to the condition that the price paid by the State shall not exceed the price which may be offered by the publisher to any other school or school authority for substantially the same book." Ga. Laws 1937, p. 896, 898.
I am unable to give you a positive opinion on the present status of that Section since it is arguable that it either was partially or totally repealed by the enactment in 1964 of Section 14 of the Minimum Foundation Program of Education Act. Ga. Laws 1964, p. 3, 14, Ga. Code Ann. 32-614.
However, even if one assumes that Section is of full force and effect, I am of the opinion that its purpose merely is to set a maximum purchase price and not to deny to the State Board of Education discretion to determine that a maximum price less than that which it establishes shall not be exceeded. Further, being restricted alone to the question of price, it does not purport to establish requirements with respect to the entire spectrum of regulations which are authorized by Ga. Code Ann. 32-614.
Accordingly, even if one concedes that Ga. Code Ann. 32-713 remains of full force and effect, which concession I will not make, I am of the opinion that the above-quoted policies are authorized by Ga. Code Ann. 32-614 either because they, or some of them, do not relate alone to price, or because they are more restrictive, rather than less restrictive, than Ga. Code Ann. 32-713.

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OPINION 68-299

July 22, 1968

You ask whether the Department of Public Health is legally authorized to require by regulation that persons or firms licensed to acquire, own, possess, use, manufacture, store, sell or otherwise dis pose of nuclear or other radioactive materials under the Georgia Radiation Control Act (i.e. Ga. Laws 1964, pp. 499 et seq., Ga. Code Ann. Ch. 88-13) notify in writing any employee who during the course of his employment receives radiation exposure in excess of certain prescribed limits. It appears that question has arisen respecting the legality of any such "mandatory" regulation due to the fact that Ga. Code Ann. 88-1309 (b) authorizes the Department only to require licensees "at the request ofany employee' to furnish such employee with:

"... a copy of such employee's personal exposure record annually, and upon termination of employment and at any time such employee has received excessive exposure."

My opinion and the reasons therefor are as follows:

OPINION

It is my opinion that ample statutory authority exists for .the Department of Public Health to require persons or firms licensed under the Georgia Radiation Control Act to notify an employee in writing when he has received radiation exposure in excess of prescribed limits.
DISCUSSION

At the outset, it must be noted that the "personal exposure record" provided for under Ga. Code Ann. 88-1309 (which may be required by the Department to be furnished to a monitored employee annually, upon termination of his employment, or, when he has received excessive exposure, provided the employee so requests) is not necessarily the same thing as a notice in writing to the employee of the fact of overexposure. To illustrate, it would be entirely consistent with an absolute requirement respecting a written notice to the employee of the fact of overexposure, to have an additional regulation providing that he need be given his "personal exposure record" (which presumably would go beyond mere "notice" of overexposure and detail the precise amount of his personal exposure) only upon his request for the same. I

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assume that your concern is what, if any, legal authority exists for the Department to require the written notice of the fact of overexposure.
As I see it, the Department's regulatory authority in the premises is amply supported by several statutory provisions. To start with, Ga. Code Ann. 88-1306(d) and (e) vests the Department with authority to adopt, promulgate, amend and repeal rules, regulations and standards regarding licensing or registration in connection with the production, use, disposal, etc. of radioactive material and "to exercise all incidental powers necessary to carry out the provisions of this Chapter" (i.e., radiation control). I would see nothing to prevent a "notice of overexposure" requirement being included as a licensing standard, rule or regulation, especially when one considers that the code chapter and all provisions therein (including the Department's regulatory authority) are to be construed in light of the stated "declaration of policy" of the Act which includes "compatability with the standards and regulatory programs of the Federal Government for by-product, source, and special nuclear materials." See Ga. Code Ann. 88-1302. The notice requirement is a federal standard and its adoption by the Department of Public Health is manifestly necessary to carry out the very purposes for which the General Assembly enacted the Georgia Radiation Control Act. Ample inspection authority exists to insure compliance. See Ga. Code Ann. 88-1308.
In concluding, I might further point out that authority for the Department of Public Health to promulgate the regulation in question indeed exists without any reference to the Radiation Control Act itself. Ga. Code Ann. 88-110 provides:
''88-110. The department, rules and regulations.-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, said department 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. Such rules and regulations must be adapted to the purposes intended and be within the purview of the powers and duties imposed upon said department by this Title."

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It would seem obvious to me that overexposure to radiation is an adverse health condition concerning which the Department may regulate for purposes of prevention or correction.

OPINION 68-300 (Unofficial)

July 22, 1968

This is in reply to your letter asking if it is legal for a person to engage in work as a surveyor when he has been appointed County Surveyor by the Grand Jury.

Ga. Code Ann. 23-1101 provides that only in counties with a population of 17,000 or over must a county surveyor be licensed by the State Board of Registration for Professional Engineers and Land Surveyors. Chattahoochee County has less than 17,000 persons and, accordingly, it is not necessary for your county surveyor to be licensed in order to conduct surveys. Ga. Code Ann. 23-1101 further provides that county surveyors are elected, commissioned, qualified and removed as are clerks of the superior courts.
Clerks of the superior courts are elected for terms of four years. Ga. Code Ann. 24-2701. If a vacancy occurs, the Ordinary, and not the Grand Jury, is charged with ordering an election to fill the vacancy (Ga. Code Ann. 24-2704) and with appointing a qualified person to discharge the duties of the office until the vacancy is filled by election (Ga. Code Ann. 24-2707). If a vacancy occurs within six months from the time the existing term will expire, the Ordinary shall fill the vacancy by appointment and shall not call a special election. Ga. Code Ann. 24-2709.

However, even though it appears from your letter that the county surveyor may not have been appointed by the proper authority, the Georgia Supreme Court has held that it is not necessary that an appointment be valid if an individual claims, is in possession of, and is performing the functions of, an office existing under the law. Tarpley v. Carr, 204 Ga. 721 (1949).

OPINION 68-301

July 22, 1968

This is in response to your request for my official opinion as to whether or not the Upson County Area Vocational-Technical

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School may charge tuition to students who reside outside Upson County.
The answer to your question depends upon that certain agreement entered into between the Georgia State Board for Vocational Education and the Board of Education of Upson County Area Vocational-Technical School, dated May 24, 1962, and particularly paragraph 12 thereof, which provides as follows:
"The Board of Education of Upson County Area Vocational-Technical School and the State Board for Vocational Education agree that the qualified students within the Thomaston vicinity, surrounding counties, and those within driving distances, and any other qualified citizen in the State who can arrange to attend, provided the desired course or courses are not available at some vocational school nearer the home of the prospective student, are eligible to enroll and attend this Area Vocational-Technical School tuition -free."
Upon the assumption that this contract still is in full force and effect, and has not been modified or rescinded so as to affect paragraph 12, above quoted, it is my official opinion that the Board of Education of Upson County Area Vocational-Technical School may not lawfully charge tuition to any student who qualifies under the express terms of paragraph 12 of the aforesaid contract.

OPINION 68-302 (Unofficial)

July 22, 1968

You have requested our unofficial optmon on whether a regulated certificated bank is eligible to qualify as a State depository and further whether public funds of the City of Folkston or Charlton County may legally be deposited in this bank.

As you are probably aware, the Georgia Code sets up a State Depository Board which appoints qualified banks as authorized depositories of State funds and your inquiry in this regard should be directed to them. Ga. Code Ann. 100-101.
Whether or not a certain bank would qualify for city or county funds is a matter which is controlled by local law and the city or

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county actorney would be the proper person to contact if you wish an opinion on whether the bank is a legal depository for these funds.

OPINION 68-303 (Unofficial)

July 23, 1968

This is in reply to your request that the Department of Law examine Opinion 67-391 in which this office concluded that the mere issuance of a warrant for the arrest of a probationer does not toll the running of a probated sentence. Your request for a re-evaluation of the Opinion states that Ga. Code Ann. 27-2723 was apparently overlooked.

The question dealt with in the Opinion was whether or not the issuance of a warrant against a person serving a probated sentence stops the running of the time of the probated sentence. I wish to emphasize that the November 6, 1967, Opinion concluded only that the issuance of an arrest warrant did not toll the running of a probated sentence.

The language of Ga. Code Ann. 27-2723, insofar as it relates to warrants, is as follows: "Upon a return of non est in ventus, or other return to a warrant for the violation of the terms and conditions of probation, that the probationer cannot be found in the county which shall appear to be the probationer's county of residence from the records of the probation office, shall automatically suspend the running of the probated sentence. . . . " It is my opinion that Ga. Code Ann. 27-2723 provides for the tolling of a probated sentence when the specified returns to a warrant have been made. The mere issuance of an arrest warrant does not toll the probated sentence; however, a pro bated sentence is suspended automatically upon an entry of one of the specified returns to such warrant.
The Opinion has been re-evaluated in the light of your request. The conclusion reached is found to be correct.

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OPINION 68-304 (Unofficial)

July 23, 1968

You request that the Attorney General inform you whether or not the State of Georgia would release an inmate at the Georgia State Prison to the State of Louisiana so that he may be tried in New Orleans on pending criminal charges. I am informed by the State Board of Corrections that the prisoner is confined at the Georgia State Prison, Reidsville, Georgia, and that his present release date is December 16, 1970.
Neither the Attorney General nor the State Board of Corrections may release an inmate of the Georgia penal system into the custody of officials of another state in order for the inmate to be tried in the criminal courts of the foreign state.

Exclusive authority to release an inmate from the Georgia prison system prior to completion of a sentence is vested in the State Board of Pardons and Paroles. Art. V. Sec. I, Par. II of the Constitution (Ga. Code Ann. 2-3011). Also in this connection, I wish to advise you that the printed rules of the State Board of Pardons and Paroles provide that "if the inmate wishes to be reprieved for the purpose of going outside Georgia, a reprieve cannot be granted." (p. 21 ).
It is my opinion that the prisoner cannot be released to the State of Louisiana for the purposes outlined in your request.

OPINION 68-305

July 23, 1968

The Governor recently signed House Bill No. 1498 which provides the manner for disposing of State surplus property by the Supervisor of Purchases. Section 5 of the Bill further states:

" ... Provided, further, nothing herein contained shall prohibit the transfer of any surplus personalty of the State of Georgia to any county, municipality or other political subdivision of this State by gift, negotiated sale or otherwise."
You have requested my opinion on whether the Supervisor of Purchases, under this Bill, may make such transfers.

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Art. VII, Sec. I, Par. Il(l) of the State Constitution (Ga. Code Ann. 2-5402(1 )) provides that:

"The General Assembly shall not by vote, resolution or order grant any donation or gratuity in favor of any person, corporation or association.... " [Emphasis added.]
The Supreme Court of Georgia on several occasions has rendered null and void any action taken pursuant to a law or resolution which violated the "no gift" provision of the State Constitution: See, Washburn v. MacNeill, 205 Ga. 772 (1949); Atlanta Chamber of Commerce v. McRae, 179 Ga. 590 (1932).
It is important to note that the constitutional prohibition against gifts applies to gifts in favor. of any person, corporation or association and it is not on its face limited to private persons, corporations or association. While I realize that, strictly speaking, counties are not corporations or associations, I also realize that the other political subdivisions of this State are called municipal corporations and as such, would seem to be within that class to whom gifts by the General Assembly are prohibited.
In view of the possible constitutional objections you would encounter if you attempted to transfer this surplus property by gift, it is my opinion and advice to you that you decline to do so as long as this problem remains.
Please note that my objection goes only to transfers by gift. I have encountered no constitutional reasons why you could not sell this surplus property to a local unit of government so long as the local unit complies with the other requirements of the Bill, i.e. that it be the highest responsible bidder and pay in cash in the event of a sale.
While I regret that I am unable to answer your request more concretely, I trust you will understand that without any relevant court interpretation on this point, I am reluctant to advise you in any other manner.

OPINION 68-306

July 24, 1968

This is in reply to your letter inquiring as to whether the amendment, H.B. 1197, Act No. 1200, of the 1968 General

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Assembly of Georgia, to the Georgia Real Estate Transfer Tax Act, Ga. Laws 1967, p. 788, alters Opinion 68-37.
The pertinent portion of the amendment provides that:
"The tax imposed by Section 1 of the Act shall not apply to any . . . instrument or writing executed by any agency of the State of Georgia or the United States Government or by any political subdivision of either of them, or by any public corporation or authority ...."
From the above language, it can be seen that the amendment speaks only of instruments by the United States Government, its agencies and instrumentalities and not instruments to the United States Government, etc. However, the prior opinion to Mr. Hollister and the conclusion in this opinion are based not on Georgia law but on an implied constitutional immunity that exempts the United States Government and all of its agencies and instrumentalities from any state or local taxation unless the Congress affirmatively provides otherwise and Congress has not seen fit to affirmatively waive the Federal Housing Authority's immunity from state and local taxation except for real property acquired by the Secretary. See 12 U.S.C.A. 1714.
Section 2 of the Tax on Transfer of Real Property provides that the tax is to be imposed on the person who executes such deed, etc., or for whose use or benefit the same is executed. But, then, Section 5 provides that "[n]o such deed, instrument or other writing as described in section 1 of this act shall be filed for record . . . until and unless the tax imposed by this act has theretofore been paid." This provision places a burden or obligation on the transferee and this is forbidden when the transferee is the Federal Housing Authority. Therefore, the 1968 Amendment will not alter the opinion to Mr. Hollistor.
However, it must be kept in mind in regard to other agencies or instrumentalities Congress may have acted differently and in each situation the burden will be on the state or local taxing authority to show that there is no immunity from the taxation.
As to the request for information contained in the letter from the Clerk of Superior Court, Decatur County, Georgia, to you, the conveyance to the Secretary of Housing and Urban Development of Washington, D.C., is not taxable as 12 U.S.C.A. 1714 only permits ad valorem taxation of real property.

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OPINION 68-307

July 24, 1968

The State of Georgia has no uniform state-wide policy on employee maintenance allowances for employees of the State institutions and facilities. These allowances are left to the discretion of the individual State agencies and, as can be expected, there are huge discrepancies among the various agencies. The State Budget Bureau and the State Merit System wish to establish a uniform state-wide policy regarding these employee maintenance allowances and you have requested my opinion on whether you have the authority to do so.

The law charges the Merit System with the duty of adopting certain rules and regulations effectuating the Merit System established by the General Assembly. The rules and regulations must include provisions for the establishment and maintenance of compensation plans, among numerous other things. Ga. Code Ann. 40-2207 (b). Since there can be little doubt that employee maintenance allowances constitute compensation, we can therefore conclude that the Merit System would have jurisdiction to establish state-wide maintenance allowances as part of the compensation plan for employees under the Merit System.

A 1960 amendment to the Merit System required the State Personnel Board to obtain the approval of the Budget Bureau before_ making any adjustment to the salary schedules promulgated under the rules and regulations of the Board. Ga. Laws 1960, p.1162, 1163, codified as the last paragraph in Ga. Code Ann. 40-2207(b).

It is therefore my official opinion that the State Merit System, acting through the State Personnel Board and with the approval of the Budget Bureau, may establish a uniform state-wide policy on employee maintenance allowances for employees under the State Merit System.

OPINION 68-308

July 24, 1968

This is in reply to your request for my opinion on the extent to which motor vehicles and combinations hauling farm and forestry products are exempt from the laws governing size, weight and minimum equipment. I also reply to your additional request

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for my opinion whether a particular type of trailer currently used to haul long logs in a longitudinal, open stowage is required to have a braking system and to undergo the annual safety inspection.
It is my understanding that you are concerned about the use of certain vehicles on the public highways and the grave threat which the unregulated use of these vehicles poses to the public safety. The vehicles in question are articulated units or combinations having three or four axles. The vehicles consist of a standard truck chassis and enclosed cab on the rear of which is mounted a pivoted, steel arm. The rear of the arm is supported by one or two axles depending on the configuration of the particular vehicle. There are two types of such vehicles. The first such type utilizes a standard fifth-wheel coupling and is readily detachable from the powered unit. The second type employs a permanent pintype coupling secured by a welded area. As such, it is not normally detachable from the powered chassis.
The law exempts "farming or agricultural equipment or forest management equipment" from the standard length, width and height limitations imposed by law. Ga. Laws 1968, pp. 30, 31-32 [ 1(a)] This exemption is subject to the twofold qualification that it applies only to vehicles being operated (1) within a radius of forty miles of the owner's property and (2) during daylight hours. Vehicles hauling forest products are expressly excluded from this exemption.
Vehicles hauling loads of poles, logs, pilings, lumber or timber are exempted from the fifty-five foot length limitation. Ga. Laws 1968, pp. 30, 32 [section 1(a)]. However, such vehicles may not exceed without special permit a total length (vehicle and load) of seventy-five feet.
A special weight limitation is imposed on vehicles hauling forest products from the forest where cut to the owner's place of business, plant, plantation or residence. Ga. Laws 1968, pp. 30, 35 (Section 2). A maximum axle load of 23,000 pounds is allowed and a maximum gross load of 75,000 pounds is permitted. This limitation is only applicable where the vehicle is engaged in hauling the products in the county where originally cut or an adjoining county thereof.
Tongue-connected farm trailers weighing empty four thousand

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pounos or less are exempted from the law requtnng an independent braking system. Ga. Code Ann. 68-1715(a)(3).
With respect to required equipment and the annual safety inspection, the critical governing issue is the defined classification of the vehicle. The periodic inspection law reaches only motor vehicles, trailers and semi-trailers. Ga. Code Ann. 68-1726. The requirement of service brakes on all wheels is applicable to motor vehicles, trailers and semi-trailers. Ga. Code Ann. 68-1715. These devices are expressly defined. Ga. Code Ann. 68-1502. As defined, they exclude pole trailers. Ga. Code Ann. 68l502(1)(b), 68-l502(4)(a), (b) and (c). The law' defines a pole trailer as "every vehicle without motive power designed to be drawn by another vehicle and attached to the towing vehicle by means of a reach, or pole, or by being boomed or otherwise secured to the towing vehicle, and ordinarily used for transporting long or irregularly shaped loads such as poles, pipes or structural members capable, generally, of sustaining themselves as beams between the supporting connections." Ga. Code Ann. 68-1502(4)(c). Pole trailers are not required to have service brakes and are not subject to the periodic inspection.
The devices which form the subject of your inquiry are not readily susceptible to classification; however, for reasons set forth following, I am of the opinion that they are not pole trailers as defined by law. It is the prime rule of statutory construction that the intention of the legislature is to be diligently sought and effected. Wall v. Youmans, 223 Ga. 191 (1967); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1951). Upon a careful reading of the Uniform Act Regulating Traffic on Highways, Ga. Laws 1953, Nov. Sess., p. 556, I am convinced that the legislature based its intended distinction not solely upon the load carried but upon the manner in which the defined load is carried by the vehicle under consideration. To hold otherwise would result in identical highway vehicles being separated into two categories according to the physical characteristics of the load ordinarily trans ported thereupon. A statute should not be construed so as to result in unreasonable or absurd consequences which the General Assembly did not contemplate. State v. Livingston, 222 Ga. 441 (1966). It is my opinion that as defined in the statute the legislature intended to classify as pole trailers only those vehicles in which the load thereupon carried was utilized to carry its own weight between the supporting connections. The obvious legislative purpose in

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establishing this classification was founded on a recognition that the radically different physical structure of such vehicles obviated the extension to them of the full regulatory scheme which the Act contemplated, while, at the same time, the limited frequency of the use of such vehicles reduced the neeed for such regulation in the paramount interest of public safety. In the instant case, the wheelbase of the vehicle is fixed, and the load is cradled fore and aft by lateral beams. It is my opinion that the fifth-wheel configuration represents nothing more than a standard semitrailer with a special body for handling certain loads in longitudinal stowage. As such, it is required to meet the braking and inspection requirements imposed by law on semi-trailers.
The definitions of trailer, semi-trailer and pole trailer all imply the existence of separate vehicles for towing and carriage. I am of the opinion that the type of unit which is secured by a flexible, welded joint is a single unified motor vehicle and not two separate vehicles. As such, it is subject to the braking and inspection requirements imposed by law on motor vehicles.

OPINION 68-309

July 25, 1968

You ask whether or not an identification lineup may be conducted at one of the State prision branches. Your letter states that a sheriff suspects that an inmate committed several crimes while in a fugitive status. The sheriff has requested that he be permitted to bring witnesses to the prison branch and to have the inmate placed in a lineup along with several other inmates who are not suspects in order to determine whether or not the witnesses may be able to identify the suspect.

I find no prohibition, either statutory or constitutional, which would prevent you from granting permission for the conduct of an identification lineup in a facility operated by the State Board of Corrections. Accordingly, it is my opinion that you may permit identification lineups to be conducted in facilities operated by the State Board of Corrections and that you may authorize the use of inmates not suspected of a crime in such lineups along with the suspected inmate.

OPINION 68-310

443 July 25, 1968

This is an official opmwn in response to your request to examine a letter written by the former Attorney General, Honorable Eugene Cook, concerning written instructions to be given by the Governor on the legal definition of insanity, and to "ascertain whether or not said letter should be rewritten, amended, or otherwise changed."
OPINION

It is my official opinion that this former 'letter should be "withdrawn and rescinded," since it does not accurately reflect the law in Georgia.

The Georgia Code section requiring such instructions is Ga. Laws 1960, pp. 988, 989 (Ga. Code Ann. 27-2602):

"Disposition of insane convicts. Cost of investigations.-Upon satisfactory evidence being offered to the Governor, showing reasonable grounds to believe that a person convicted of a capital offense has become insane subsequent to his conviction, the Governor may, in his discretion, have said person examined by such expert physicians as the Governor may choose, the cost of said examination to be paid by the Governor out of the contingent fund. It shall be the responsibility of the Governor to cause said physicians to receive written instructions which plainly set forth the legal definitions of insanity as recognized by the laws of this State, and said physician shall, after making the necessary examination of the prisoner, report in writing to the Governor whether or not reasonable grounds exist to raise an issue that the prisoner is insane by the standards previously specified to them by the Governor. The Governor may, if he shall determine that the person convicted has become insane, have the power of committing him to the Milledgeville State Hospital until his sanity shall have been restored or determined by laws now in force."

The "instructions which plainly set forth the legal definitions oi insanity as recognized by the laws of the State," and which should be given by the Governor to the examining physician under this Code section are as follows:

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"Whether the prisoner after conviction has the mental ability to comprehend: (1) the offense for which he was tried; (2) the nature of and the reason for the punishment which is to be imposed upon him; and (3) any facts or circumstances which might make his punishment unlawful, and whether he has the ability to make these facts or circumstances known either to his counsel or to the court."
AUTHORITY FOR OPINION
The word "insanity" is one of broad and varying interpretation. Its definition at any given time depends on the reason or purpose for which it is being applied. Brown v. State, 215 Ga. 784,786, 113 S.E. 2d 618 (1960).
For the purpose of determining whether or not a person is "insane" so as to be dangerous to himself and to society, and would be a proper subject for civil commitment, the definition is usually phr;:tsed in terms of "unsoundness of mind," "psychiatric disorder," etc. See, for example, Ga. Code Ann. 102-103 "Lunatic, Insane, or Non compos mentis," and 88-501 Definitions-(a) "Mentally Ill Person." For other purposes the definition differs, since the law is primarily concerned with the ability of the person to comprehend the effect or consequences of the particular act under investigation.
For example, in determining whether a person will be held responsible for a crime committed he must have "reason sufficient to distinguish between right and wrong" as to the act committed. Ga. Code Ann. 26-301. In determining whether a guardian should be appointed for a "mentally ill" ward, the legal definition is whether the ward is "capable of managing his estate." Ga. Code Ann. 49-604. "Insanity" for purposes of determining a person's legal capacity to execute a contract or deed is whether that person "understands the nature and consequences of his act." See Ricketson v. Ricketson, 151 Ga. 540, 107 S.E. 522 (1921).
Similarly, in determining whether a person convicted of a capital offense is "insane" for purposes of postponing the punishment, the law looks to the purpose or reason why the issue of insanity is raised. Since common law times, it was required by "public propriety and decency" that no insane con viet be executed if he was unable to understand his situation, and mentally incompetent to offer some existing reason why execution

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should not be carried out. See excellent discussion in Solesbee v. Balkcom, 339 U.S. 9, 15, 94, 70 S.Ct. 457, 463, L.Ed. 604, 606 (1949); Re Long, 77 N.J. (L.) 207, 71 Atl, 47 (1908); 4 Blackstone Comm., p. 388-89; and Hale, History of Pleas of the Crown, 34, 35 (1736).
Therefore, the legal test of insanity, for purposes of determining whether an alleged insane convict should be executed, has been generally recognized to be
" ... whether the prisoner has sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful, and the intelligence requisite to convey such information to his attorneys or the court." 21 Am. Jur. 2d, Criminal Law 76, p. 158; 24 C.J.S. Criminal Law 1569, 1619, pp. 440, 929; Annat., 3 A.L.R. 97; 49 A.L.R. 805; Words and Phrases, "Insanity," p. 359; and West Key No., Crim. Law 981 (2).
The Georgia Supreme Court has substantially adopted this definition of insanity for post conviction purposes, and has not applied the general legislative definition of "lunacy," "insanity" etc. (Ga. Code Ann. 102-103) to pleas and defenses of "insanity" in criminal prosecutions. See, for example, Brown v. State, 215 Ga. 784, 113 S.E. 2d 618 (1960).
The test was first applied in Baughn v. State, 100 Ga. 554, 562, 28 S.E. 68 (1897), affirmed 168 U.S. 398, 42 L.Ed. 515 (1897), where the Georgia Supreme Court stated that
". . . All investigations after conviction as to the mental condition of the prisoner, are for the sole purpose of determining whether it would be consistent with public decency and propriety to take away the life of a person who had not mind enough to realize what was being done."
This definition was further amplified in Lee v. State, 118 Ga. 764,45 S.E. 628 (1903), where the Court included the idea that
". . . Before the prisoner would be found insane, it should be shown that he would not know he would deserve

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punishment for doing a wrong act, and if punishment therefore should be inflicted upon him, would not comprehend the reason why he was being punished." 118 Ga. at p. 769.
A new element of knowledge of possible defenses was added in Solesbee v. Balkcom, 204 Ga. 122, 52 S.E. 2d 433, 436 (1949) aff'd 339 U.S. 9, 70 S.Ct. 457,94 L.Ed. 604, rehearing denied 339 U.S. 926,70 S.Ct. 618,94 L.Ed. 1348 (1949).
"(A prisoner] ... though legally convicted and sentenced should not suffer death during his mental incapacity to realize his situation and perhaps invoke some remedial measure in his behal f."
A synthesis of these Georgia cases, taken with the common law and generally recognized definitions of "post conviction insanity" by the several States, would justify the suggested instructions given above. It should also be noted that the proposed new criminal Procedural Code 27-1901, which provides that
"The Governor shall notify the psychiatrists in writing that tliey are to examine the convicted person to determine whether his mental condition is such that he understands the nature and effect of the death penalty and why it is to be imposed upon him,"
if enacted into law would not be inconsistent with this view.

OPINION 68-311 (Unofficial)

July 25, 1968

This is in reply to your letter of July 18, 1968, in which you asked the following questions regarding the above-referenced matter:

"1. Are there any 'qualifications' for a Solicitor of the City Court of Athens which Judge Hartman must examine prior to qualification of a candidate?"

"2. \1ay the Judge of City Court of Athens appoint a Solicitor pro-tem in the meaning of Section 2, Acts 1911 and Section 2, Acts 1913, if there is. actually a 'vacancy' in said office, or does this create an 'absence, inability or disqualification'?"

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"3. If a Solicitor pro-tem may be appointed, may the present Solicitor serve in this capacity as well as the capacity of Magistrate's Court judge?"
"4. Is the interpretation of Section 4, Acts of 1939, that the Ordinary shall 'call' the election within 30 days, or shall such special election be held within 30 days of the vacancy occurring?"
"5. What is the interpreta:tion of the phrase 'in all respects' occurring in Sections 34-806 and 34-1331 of the Georgia Election Code, in view of provisions of Section 341004 of said Code?"
"6. Do these Commissioners fix the qualifications fee for candidates in the special election and must the Ordinary wait until the fee is fixed before calling the special election?" (The Commissioners of Roads and Revenue meet on 6 August in regular meeting, as the county 'governing authority.')
"7. Would it be within the law for the Ordinary to call the special election on 6 or 7 August, set the closing date for qualification to be 16 or 17 August and set the special election date on 11 September and in conjunction with the State primaries? If not, what would be the proper time intervals in matter of days?"
Responding to each question individually, I find:
l. Ga. Code Ann. 34-1001 (e) requires a candidate for federal, State, or county office to accompany his notice of candidacy with an affidavit stating that he is eligible for such office. Such a declaration is, of course, subject to challenge by any interested person including the Ordinary. There is, however, no affirmative duty placed upon the Ordinary to investigate the qualifications of any candidate for office.
As to the qualifications for Solicitor of the City Court of Athens, neither the act creating the court (Ga. Laws 1878-79, p. 291), nor the laws amendatory thereof, (Ga. Laws 1911, p. 235; Ga. Laws 1913, p. 143; Ga. Laws 1939, p. 447) impose any qualifications upon the candidate for the office of Solicitor of such court. Accordingly, it is my unofficial opinion that the only qualification for such office would be that the candidate not fall within any of the general disqualifications found in Art. XI, Sec. II, Par. I of the Georgia Constitution and Ga. Code Ann. Ch. 891.

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2. 11,e Act creating the City Court of Athens, as amended, provides for the filling of vacancies in the office of Solicitor by election. It also provides for the appointment of a Solicitor protem "[i]n the absence, inability or disqualification of said Solicitor to act or to perform the duties of his office." A "vacancy" is a place which is empty. The term is principally applied to an interruption in the incumbency of an office. Parkerson v. Hart, 200 Ga. 660. It refers not to the incumbent but to the term, or to the office or both. Hooper v. Almand, 196 Ga. 52. The words "pro-tem" or "pro tempore" on the other hand, mean "for the time being" and it has been held that a "pro-tem judge" is elected or appointed to act for, and in the absence, sickness or disqualification of, the regular judge, and is only a substitute, not a duplicate judge. Hargadon v. Silk, 279 Ky. 69, 129 S. W. 2d 1039, 1043. There being a presumption that the General Assembly intended every part of a statute to have sensible and intelligent meaning (State Revenue Commission v. Alexander, 54 Ga. App. 295), I think that a "vacancy" refers to a condition of the office whereas the pro tempore position refers to the status of the incumbent and that the provisions are mutually exclusive.
3. Ga. Code Ann. 89-103 provides that no person shall hold in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature. Accordingly, I believe that unless the Legislature has specifically provided otherwise, the Solicitor may not serve both in the capacity of Solicitor pro-tem, in the City Court of Athens and as Judge of the Magistrate's Court inasmuch as both positions are county offices.
4. Ga. Laws 1939, pp. 447, 448, provides that in the event of a vacancy occurring in the office of Judge or Solicitor of the City Court of Athens, the Ordinary shall call an election to fill such vacancy w"ithin thirty days from the time said vacancy occurs. Ga. Code Ann. 34-806 provides that at least thirty days shall intervene between the call of a special election and the holding of same. The above-described statutes relate to the same purpose and, accordingly, are in pari materia. Consequently, they must be construed together and harmonized whenever possible. Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731 (1948). Applying such a construction, it is my unofficial opinion that

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there is no conflict presented and that the Ordinary has thirty days from the vacancy in which to call the election which election must be held at least thirty days after the call of same. In this regard you will note that Ga. Code 34-105 provides that when a number of days prescribed by the Election Code is modified by the words "at least", then the full number of such days shall intervene between .the last day on which such privilege may be exercised and the subsequent event.
5. Ga. Code Ann. 34-806 and 34-1331 relating to special elections require such elections to be held and conducted in all respects like general elections ifnsofar as practicable and not inconsistent with any other provision of the Election Code. Accordingly, I believe that, in conducting and holding a special election, any provision of the Election Code, including Ga. Code Ann. 34-1004, expressly relating to special elections will take precedence over a contrary section which relates to general elections.
6. As previously stated, Ga. Code Ann. 34-806 requires that at least thirty days intervene between the call of a special election and the holding of same. Ga. Code Ann. 34-1004 requires the governing authority of any county to fix and publish a qualification fee to be paid by candidates seeking election to county office at least twenty days prior to the election in the case of a special election. Thus, since there must always be thirty days between the call of an election and the holding of same, and since the governing authority may wait until at least twenty days before the election to set the qualifying fees, it follows that the Ordinary is required to call an election without regard to whether or not the qualifying fees have been set by the governing authority of the county.
7. In order to hold the special election on September 11, it would be necessary to call such election at least thirty days prior to such date. Ga. Code Ann. 34-105, 34-806. The last business day preceding the full thirty-day period would fall on August 9, 1968. Accordingly, the Ordinary may, if a vacancy exists in the office of Solicitor, call a special election to fill the vacancy on. a date on or before August 9, 1968, by setting the election for September 11, 1968.
Ga. Code Ann. 34-1001(b) requires a candidate to file his notice of candidacy at least fifteen days prior to. the election in

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the case of a special election. "At least" fifteen days prior to September 11, 1968, computed in accordance with Ga. Code Ann. 34-105 would fall on August 26, 1968, and that date would consequently be the last day for qualification in time for a special election to be held on September 11, 1968.

OPINION 68-312 (Unofficial)

July 25, 1968

This is in reply to your letter asking for an unofficial opinion on the following questions:
"1. Can you print a card to hand out at the polls and through the mail that shows a lever to pull and says vote for a specific person?"
"2. Can you also have a card that shows two candidates running for an office and one struck through?"
"3. Can your parents stand with you or in lieu of you at the polls?"
At the outset, Ga. Code Ann. 34-1307 and 34-1319(d) prohibit any person, including candidates, from distributing campaign literature or written matter within 250 feet of a polling place on a primary or election day. Accordingly, I do not believe it would lawful to distribute any kind of card at a polling place asking persons to vote for a specific candidate.
Whether a person may distribute printed matter elsewhere showing a voting lever or the name of a candidate with a line drawn through it would depend on the similarity of such printed matter to a ballot. Ga. Code Ann. 34-1913 provides that it shall be a felony for any person to construct, make or have in his possession any counterfeit of an official ballot or ballot card. An exception is made for facsimile ballots printed and published in any newspaper so long as such facsimile ballot is at least twentyfive per cent larger or smaller than the official ballot of which it is a facsimile. Other than the newspaper exception described above, I would not be in a position to decide, as a matter of law, whether any particular printing is a counterfeit ballot, such question being in every case a question of fact to be determined by jury.

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Turning to your third question, which I understand to refer to campaigning at the polls, Ga. Code Ann. 34-1307 provides that no person, with the exception of candidates, shall solicit votes within two hundred feet of the polls on any primary or election day. When the General Assembly has made an exception to a general rule as it has in Ga. Code Ann. 34-1307 for candidates, it is presumed that all other classes of persons are excluded under the maxim Expressio unius est, f!Xc/usio alterious. See City of Macon v. Walker, 204 Ga. 810(2). Accordingly, I believe that a candidate's parents are not contemplated as falling within the exception allowed for candidates in the a hove-cited Code section.

OPINION 68-313 (Unofficial)

July 25, 1968

You have requested my comments on some problems you have encountered in applying the "Molotov Cocktail Act" (Ga. Laws 1967, p. 452). The comments I have are grounded on a legal footing and very possibly will cause more problems than they solve because of my lack of expertise in your area. However, this may be the best way to start a meaningful discussion and I am happy to assist you.
I. Breakable Containers
Unless you know of a court decision to the contrary which have not found, I would say that the term "breakable containers" encompasses anything tha:t could break, that is, a container that is "not unbreakable." The fact that a particular container did not break on one instance would not mean that it is not a "breakable container." Soft, plastic milk containers are not unbreakable and would therefore come within the class of "breakable containers" without any further changes.
2. Rammable liquid
The Act says "flammable liquid or compound." Compound, as understand it, means "a distinct substance formed by the chemical union of two or more ingredients in definite proportion by weight." Webster's Seventh New Collegiate Dictionary (7th ed. 1965).

It is my opinion that any fire bomb which contains either a

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flammable liquid or compound would come under this Act. It is not necessary that the liquid or compound be the only ingredient, so long as it is in fact a part of the fire bomb, and meets the other requirements of the Act. You could have a mixture of several compounds, but so long as one of them is flammable, you have a fire bomb.
You mention that a number of chemicals are used that are not "flammable." Again, referring to the dictionary, I find that "flammable" means "capable of being easily ignited and of burning with extreme rapidity." If the liquid or compound could start a fire and cause the destruction intended by the user of the Molotov Cocktail, then it would seem, by definition, to be "flammable." Perhaps I have missed the point of your problem here. If so, please let me know how and I will review it again.
It is important to note that when one interprets an Act, one should use definitions which are commonly used unless the word is a word of art and a different meaning was clearly intended by the General Assembly.
3. Flash Point of 150 degrees Fahrenheit or less
There are certain oils, spirits and mixtures which do not come down to this level of flash point. You have two readily apparent alternatives:
(a) raise the flash point level to include those substances you think should be included; or
(b) eliminate the flash point requirement altogether.
I leave to your discretion which of the two you choose or whether there is a better alternative. I do not believe the definition would be too vague for the courts if you eliminated the flash point requirement, but again, you can seldom be certain when you try to second-guess a court.

OPINION 68-314

July 26, 1968

This is in reply to your request for my official opinion on the following question:
"Where a candidate timely files a satisfactory nomination petition bearing a sufficient number of signatures thereon,

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accompanied by the certification of a policitcal party that he has been selected as the candidate of that party for the office sought by the candidate, but where the candidate does not file minutes of a nomination convention showing that he was nominated in convention, should that candidate's name appear on the ballot in the column for the political party involved, or should thd candidate's name appear in the column for independent candidates?"
A candidate for public office qualififes to have his name placed on the general election ballot by complying with the requirements of Ga. Code Ann. 34-1001 (artd the necessarily related Code sections such as 34-10 10). Compliance therewith entitles the candidate to have his name printed on the ballot but not necessarily as a candidate of a particular political party (i.e. in the column of a political party).
Generally speaking there are three ways by which a candidate becomes eligible to have his name appear on the ballot as the candidate of a party: primary, convention, and petition. The first two, primary and convention, are universally recognized as means by which a party nominates candidates. 25 Am. Jur. 2d Elections 144.
In Georgia, as in some other states, the nomination petition may be used by a political party as well as by independen: candidates. 25 Am. Jur. 2d Elections, 169. As was said by Mr. Paul Rodgers in 10 E. G.L., Elections, 85, p. 119: "The nomination petition procedure for placing candidates' names upon election ballots is available to both independents and nominees of political organizations."
Thus the question becomes, does the nominee of a political party who gets his name on the ballot by the petition method also have to comply with the requirements of Ga. Code Ann. 341012 (enacted in 1968) relating to the convention method, in order to have his name appear on the ballot as a party candidate.
Recognizing that in Georgia there are three methods by which a candidate becomes eligible to have his name appear on the ballqt as a party candidate: primary, convention, and petition, it is my opinion that since Ga. Code Ann. 34-1012(a) provides that "any party desiring to nominate candidates by convention shall. . ." do certain things, that Code Section is applicable to

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the convention method of nominating candidates and not to the petition method. This view is strengthened .when it is noted that said Ga. Code Ann. 34-1012, in paragraph (d), requires convention candidates to pay a qualifying fee. Ga. Code Ann. 34-1004 requires petition candidates to pay a qualifying fee. If petition candidates were also required to comply with Ga. Code Ann. 34-1012 relating to conventions, they would be subject to two qualifying fees. Thus, it is my opinion that the requirements as to conventions were not added to the requirements as to nomination petitions by Ga. Code Ann. 34-1012. It is noted that the Code Section does not say: "Any party desiring to nominate candidates by any method other than by primary shall. . . ."
The convention law (Ga. Code Ann. 34-1012) applies to party candidates in the circumstances where petitions are not required by Ga. Code Ann. 34-lOOl(c)(ii), (v) and (vi). 10 E.G.L., Elections, supra, 82, p. 118.
One might say that parties nominate candidates by primary or convention and in no other way, but parties also may nominate candidates by another recognized means, sometimes referred to as "caucus" or "committee" (25 Am. Jur. 2d Elections 144146) and known in Georgia as "committees."
"Under the Georgia Election Code, the state committee of a political organization possesses ample power to nominate candidates for public office. . . ." 10 E.G.L., Elections, 83, p. 118. (Of course, committee nomination or appointment does not in and of itself entitle a man to have his name appear on the ballot as the requirements of Ga. Code Ann. 34-1001 (c) must still be met.) It is by this latter method (committee nomination or appointment) by which the political parties in Georgia customarily and will this year nominate their slates of presidential electors. (Neither party has or will conduct a presidential primary or timely state convention this year to choose their respective presidential electors.) If the parties were limited to the primary or convention method of nominating presidental electors, neither party could field a slate of presidential elector-nominees this year and I am certain that such was not the intention of the General Assembly.

OPINION 68-31:; (Unofficial)

455 July 26, 1968

You have requested an opinion from this office whether a person sentenced to a county jail is subject to the same method of computation of his sentence as used by the State Board of Corrections.

In answering your question, I call your attention to Ga. Code Ann. 77-201:
"County prisoners' good-time allowance.-Misdemeanor offenders confined in county facilities under the jurisdiction of the county as provided in section 27-2506(a) shall earn good time in the amount of four days for each month of the sentence and shall earn extra good time in the same amount as may be prescribed from time to time by the State Board of Corrections for prisoners under its jurisdiction. The computation of good-time allowances and extra good-time allowances shall be made by the sheriff of the county, chief jailer, warden or other officer designated by the county as custodian of said prisoners. (Acts 1964, p. 493.)"

This Code section requires that prisoners under your jurisdiction be given good-time and extra good-time allowances on their sentences as provided by the State Board of Corrections. For your aid in computing these sentences I have enclosed two charts that have been prepared by the Board to determine sentences. You will note that one of the charts applies to sentences arising after July l, 1964. If you have a prisoner whose sentence began prior to this date, use the chart labeled "Old Chart-Effective May 1, 1959".

OPINION 68-316 (Unofficial)

July 26, 1968

This is in reply to your letter asking my unofficial opinion regarding candidates nominated by an alleged convention held on July 13, 1968. You have asked whether the convention held on such date is consistent with State law; whether such nomination is consistent with the rules and regulations of the Republican Party; whether the candidates nominated thereat are required to

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accompany their notice of candidacy with a qualification fee; and whether the Republicans nominated are required to accompany their notices of candidacy with nomination petitions.
Turning to your first and second questions, Ga. Code Ann. 34-1012 (e) requires that a convention held for the purpose of nominating candidates be held at least ninety days prior to the date on which primaries are conducted. Computing such ninetyday period in accordance with Ga. Code Ann. 34-105, I find that the latest date by which a party would legally have held a convention for the purpose of nominating candidates to be elected at the general election in 1968 was June 12, 1968. Accordingly, it is not necessary to determine whether the notice of the convention was adequate or in accordance with party rules. For your information, however, I am enclosing copy of the rules of the Republican Party regulating the conduct of conventions. These rules have been approved by, and are on file with, the Secretary of State as required by Ga. Code Ann. 34-1012 and 34902(b). Such rules are thus effective and binding upon the county organization. The county executive committee is free of course to supplement such rules with rules of their own consistent with these of the party. Such rules must be filed with the Ordinary (Ga. Code Ann. 34-902) and would thus fall within your purview.
The effect of Ga. Code Ann. 34-1004 and 34-1012 is to exempt only candidates nominated in a primary from paying the qualification fee. Accordingly, I believe that the candidates to whom your refer must pay a qualification fee because they are not within the above-described exception.
An individual may become the nominee of a political party by means other than convention or primary, however. I have recently discussed this method in Opinion 68-314.

OPINION 68-317 (Unofficial)

July 29, 1968

You wish to know whether fireworks are legally for sale in Georgia. The Georgia law permits the sale of fireworks when used in a public exhibition or display if the person buying the fireworks has obtained the proper license from the Ordinary of the county

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in which the fireworks display is to take place. Ga. Code Ann. 92A-803 and 92A-804. Without the necessary permit from the Ordinary, the sale of fireworks in Georgia is illegal, except in certain exceptions such as use by railroads or other such agencies for signal purposes, or the use of blank cartridges by theaters or in athletic or sports events or military or police organizations. Ga. Code Ann. 92A-804.
Aside from the above exceptions, it is my unofficial opinion that fireworks in Georgia cannot legally be sold even for use outside of Georgia since the law only permits the sale of fireworks to the general public when the necessary permit from the Ordinary has been obtained and the permit would only allow a display in that county.

OPINION 68-318 (Unofficial)

July 29, 1968

This is in response to your letter requesting an answer to the question:

"Must a petition (for a special election for a dry county) be signed exactly as the name appears on the voters list or may it vary?"

There is no requirement that the name appear exactly as it appears on the voters list. However, it would seem that when a qualified registered voter signs his (or her) name different from the way that it appears on the voters list, i.e., using initials instead of given name, married women using given name instead of husband's given name or initials, etc., he (or she) runs the risk that the name will be stricken from the list and not counted in totaling the number of signatures on the petition submitted. If it requires any extraneous evidence to identify the signature as a qualified "egistered voter the Ordinary may strike the name and if because of the striking of such a name or names the petition does not contain the requisite number of qualified registered voters he may refuse to call the election (See Barrett v. Ashmore, 137 Ga. 545 (1912)), but if the Ordinary, or someone acting in his behalf. is familiar with the name or upon obtaining some extraneous information is able to determine that such signature is in fact a qualified registered voter he may count the name and if

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there is a requisite number of qualified registered voters he may call the election and such action is prima facie correct and the burden is upon a complaining party to overcome this presumption. See Sanders v. Mason, 197 Ga. 523 (1944).
As to the request in the third paragraph of your letter, the 1968 Session of the General Assembly did not make any changes as to the submitting of a liquor petition.

OPINION 68-319 (Unofficial)

July 29, 1968

Your request concerning Ga. Code Ann. 53-105 was referred to me for reply. This section provides, in part, that "Marriages in Levitical degrees of blood relationship are void." You state that in Leviticus 18, reference is made to the female that a male may not marry and ask the following question:
"Does the reciprocal also apply under Georgia State law, viz., that a woman cannot marry a man in the corresponding Levitical degree?"

Initial research disclosed that the portion of Ga. Code Ann. 53-105 bearing on your question has never been the subject of court interpretation. In an attempt to seek an answer, I traced the present Code section back over a period of one hundred and fifty years to Prince's Digest of Georgia Laws (1837). A provision dealing with "Levitical degrees" has apparently been in existence since that time and probably before. However, until the Code of 1933 the provision in question was part of the penal code and not found in the marriage statutes.
The Code of 1833 (Tenth Division), found in Prince's Digest of Georgia Laws (1837), p. 645, 646, contained the following provisions:

"234. Sec. II I. If any man or woman being unmarried, shall knowingly tnarry the wife or husband of another person, such man or woman, shall on conviction, be punished by imprisonment and labor in the penitentiary, for any time not less than one year, nor longer than three years.

235. Sec. IV. If any person shall commit incestuous fornication or adultery, or intermarry within the Levitical

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degrees of consanguinity or affinity, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one nor longer than three years; and such marriage shall be void. (Emphasis added).
236. Sec. V. Any man and woman who shall live together in a state of adultery, or fornication, or of adultery and fornication; or who shall otherwise commit adultery, or fornication, or adultery and fornication, . . . ."
A penal statute similar to Section IV above still exists as Ga. Code Ann. 26-5702.
Section IV was applied in an early Georgia case, Powers v. State, 44 Ga. 209 (1871 ), and the language was interpreted at page 214 of that opinion as follows:
"Nothing can be plainer than that the crime of incestuous fornication is, by our statute, not a joint offense. The words are, 'any person who shall commit incestuous fornication.' By what rule of construction this can be made to mean, 'if any two persons shall,' etc., we are unable to see. The very next section of the Code ... punishing fornication and adultery, does make a joint offense, and uses very different language. 'Any man and woman who shall,' etc. It is hardly supposable that language so different should be used in almost the same sentence without a special intent. And there is great propriety in the distinction. The unnatural crime . . . as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally is alone to blame." (Italics by court.)
The court's distinction is significant in explaining the use of the term "any person" and in revealing the attitudes of the society at that time concerning the relationship between men and women.
While the material I have cited does not completely answe1 your question, it does provide a foundation upon which I can venture an opinion. Ga. Code Ann. 53-105 is probably based, in part, on the court's thinking in the Powers decision that the male is the dominant in society, and the unwitting female who falls victim to his immoral acts is blameless. Biblical writing is founded on somewhat the same premise. The "Levitical degrees"

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discussed in the Powers case were undoubtedly applied only to the male. If a court today was asked the question you have posed, the outcome might be different; but it is my unofficial opinion that, based upon statutory history and the Powers case, the Levitical degrees in Ga. Code Ann. 53-105 would apply only to the male's relationship to the female.

OPINION 68-320

July 29, 1968

You inquire as to the status of our brake fluid standards (Ga. Code Ann. 73-401 to 73-409).
For the reasons enumerated below, it is my opinion that Georgia is unable to enforce brake fluid standards unless such standards are identical to the Federal standards requlating brake fluids.
Section l03(d) of the National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 718, preempts the field with respect to safety standards applicable to motor vehicles and motor vehicle equipment where, under the above Act, Federal standards have been established.

"Whenever a Federal motor vehicle safety standard established under this title is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard."

The Secretary of Commerce established brake fluid standards under authority of the 1962 Act, 15 U .S.C. 1301-03. These standards are codified at 15 C. F.R. Subtitle A, Part 6. Section 117 (a) of the National Traffic and Motor Vehicle Safety Act of

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1966, 80 Stat. 718, repeals the 1962 Brake Fluid Act but 117(c) provides that:
"All standards issued under authority of the laws repealed by subsection (a) of this Section which are in effect at the time this Section takes effect, shall c; mtinue in effect as if they had been effectively issued under Section 103 until amended or revoked by the Secretary, or a court of competent jurisdiction by operation of law."
Since, under 117(c), the brake fluid standards remain in effect, our question becomes: Do the preemptive provisions of 103(d) encompass brake fluid standards? More specifically, we must decide whether brake fluid is "Motor Vehicle Equipment" since 103(d) prohibits state standards only as to motor vehicles and motor vehicle equipment.
The term "Motor Vehicle Equipment" is defined in 102 (4) ofthe 1966 Act:
'"Motor vehicle equipment' means any system, part, or component of a motor vehicle as originally manufactured or any similar part or component manufactured or sold for replacement or improvement of such system, part, or component or as an accessory, or addition to the motor vehicle."
Unfortunately, this definition does not answer our question.
However, a careful reading of 117, 103 and 102 (2) indicates that brake fluid is "motor vehicle equipment." Note that 117(c), set forth above, provides that the federal brake fluid standards shall continue in force as if they had been issued under 103. The only standards which are authorized by 103 are "motor vehicle safety standards."
"The Secretary shall establish by order appropriate Federal motor vehicle safety standards. Each such Federal motor vehicle safety standard shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms."
Consequently, the brake fluid standards are "motor vehicle safety standards." This term is defined in 102(2):

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"'Motor vehicle safety standards' means a m1mmum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria."
Note that the term "motor vehicle safety standards" encompasses only motor vehicles and motor vehicle equipment. Since 117 (c) provides that the Federal brake fluid standards are to continue in force as if promulgated under 103; since all standards under 103 are "motor vehicle safety standards;" since, as defined in 102(2), the term "motor vehicle safety standards" appplies only to motor vehicles and motor vehicle equipment, it follows that brake fluid is motor vehicle equipment for purposes of the National Traffic and Motor Vehicle Safety Act of 1966, 80 Stat. 718.
Section 103(d), set forth above, does not prevent the state from establishing brake fluid standards. But it does prevent the state from establishing any brake fluid standards which are not identical to the federal standards.
Furthermore, it appears that, should the State adopt identical standards, it should not begin enforcement of its standards until federal enforcement ends, i.e., until after the first retail sale of the new motor vehicle equipment. Consequently, the state is unable to enforce standards against manufacturers and dealers and is limited to enforcing post-sale compliance with the identical motor vehicle safety standards.

OPINION 68-321

July 29, 1968

This is in reply to your letter as king my opinion regarding the necessity of opening the polls for a municipal primary when there is only one candidate seeking party nomination for each office and when there are no ordinances or charter provisions governing such a situation.

Your question has reference to the newly-adopted Georgia Municipal Election Code which is to become effective on September 1, 1968. Being newly adopted there are no court decisions construing the same and I am consequently limited to applying general rules of statutory construction to your question.

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Thus, a situation might arise in the future which contains factors not now apparent which would result in the courts applying different rules of construction and, possibly, a conclusion different from mine.
Ga. Code Ann. 34A-907 provides that a political party, in nominating a candidate in a primary shall use and provide poll officers for each pollingplace. Standing alone, such Code Section would seem to require the opening of each poll to nominate candidates in a primary. Ga. Code Ann. 34A-906(b), however, provides that when a candidate for nomination to public office has no opposition within his party he shall automatically become the party nominee for such office if there is no contrary provision in the city's charter or ordina:nces. Said Code section, which has no corresponding section in the Georgia Election Code, further provides that the name of such an unopposed candidate and the title of the nomination he is seeking shall not, in the absence of a charter provision or ordinance, be placed upon the primary ballots or ballot labels.
It thus appears that the literal language of Ga. Code Ann. 34A-906 and 34A-907 separately and without regard to each other require a party in the situation described by you, to open all its polling places in order to make available to all electors a blank ballot. (You are, of course, aware that write-in votes are expressly forbidden in a primary by Ga. Code Ann. 34A-1219). In construing statutes, however, a court may decline to give such a construction as would attribute to the General Assembly an intention to pass an unreasonable act or to defeat the purpose of the legislation. Board of Tax Assessors of Decatur County v. Catledge, 173 Ga. 656 (1931 ). Furthermore, it is well settled that a whole system of law such as the Municipal Election Code is not to be construed by single Code sections, but the entire system must be construed as a whole. Lucas v. Smith, 201 Ga. 834, 837 (1947). So construing the above-cited Code sections, I believe that under the circumstances described in your letter, it is necessary to open the polls only when nominating a candidate in a primary pursuant to Ga. Code Ann. 34A-907, but that it is not necessary to open the polls when the candidates have all been automatically nominated prior to any primary pursuant to the provisions of Ga. Code Ann. 34A-906(b).

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OPINION 68-322

July 29, 1968

You have requested my optmon on whether or not, under the correct interpretation of the Georgia law, the Insurance Department may approve a franchise accident and sickness policy form in which the premium will be paid directly by the policyholder to the insurance company. The Georgia Insurance Code defines franchise accident and sickness insurance to be that form of accident and sickness insurance issued to certain employees or members of trade associations or labor unions formed in good faith for purposes other than that of obtaining insurance:
" . . . under an arrangement whereby the premiums on such policies may be paid to the insurer periodically by the employer, with or without payroll deductions, or by the association or union for its members, or by some designated person acting on behalf of such employee or association or union. The term 'employees' as used herein shall be deemed to include the officers, managers and employees. . . ." Ga. Code Ann. 56-3018(2). (Emphasis added.)

It has been the practice of the Insurance Department to require that the premium for such policies be remitted by one of the methods set out in the above statute. Recently, the Insurance Department has received a filing for approval which provides that the premium will be paid directly by the policyholder to the insurance company.

The issue is to determine whether the word "may" as used in the above statute is permissive or mandatory, that is, whether the above methods of payment are the only methods which may be used or whether the premium may also be paid directly by the policyholder to the insurance company.

When interpreting statutes, the primary objective is to diligently try to ascertain the intent of the legislature in passing the statute. Ga. Code Ann. 102-102(9). There are certain rules of statutory construction which can be used as tools in this task and one of the primary rules is that the word "may" ordinarily denotes permission and not command. Where the word concerns the public interest or affects the rights of third persons, it will be construed to mean "must" or "shall." Ga. Code Ann. 102-

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103; Kilgore v. Paschall, 202 Ga. 416, 418 (1947); Jennings v. Suggs, 180 Ga. 141 (1935). As the above cases point out, "public interest" usually means the sake of justice or the public benefit and "rights of third parties" usually means the rights of the general public. It is difficult to see how the sake of justice or the rights of third parties or the general public would be adversely affected if the statute in question was construed to allow payment by the individual policyholder as well as by the other methods set out in the statute.
It is especially important to note that where, as in this statute, the word "shall" appears in close juxtaposition in another part of the same statute, the inference is very great that the word "may" should be construed as permissive. U.S. v. Topor-Ideal Dairy Company, 175 F. Supp. 678, 682 (N.D. Ohio 1959), aff'd, 283 F. 2d 869 (6th Cir. 1960); Scanlon v. City of Menasha, 16 Wis. 2d 437, 114 N. W. 2d 791 (1962).
It is therefore my opinion that the General Assembly intended the word "may" in this statute to be permissive and you may proceed to approve the franchise accident and sickness policy form according to this interpretation.

OPINION 68-323 (Unofficial)

July 30, 1968

This is in reply to your request in regard to whether the governing authority of Brooks County may lawfully levy a one mill tax, the proceeds of which are to be used by the Brooks County Development Authority.

In 1966, the General Assembly proposed ,an amendment to the Constitution whereby "Brooks County is authorized to levy a tax on all the taxable property therein not to exceed one mill for the pur pose of securing a fund to be set aside and used by said [Brooks County Development] Authority . . . ." Ga. Laws 1966, p. 870. At the November general election of 1966, the electors of Brooks County voted to approve such amendment by 1898 votes "for" to 546 votes "against" its adoption, and the amendment was proclaimed by the Governor to be part of the Constitution of Georgia. Ga. Laws 1967, pp. 1132, 1143.

As you know, the Constitution of Georgia is second only to

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that of the United States and laws and treaties made in pursuance thereof. Georgia Constitution Art. XII, Sec. I, Par. I and II. I am aware of no provision of the U.S. Constitution or any law or treaty made thereunder which would in any way affect the abovedescribed amendment to the Georgia Constitution. Finally, it may be argued that the amendment authorized a tax only for the general purposes therein described but that the powers and duties of the Authority were not provided for therein but left to the General Assembly for implementation. It is not necessary to consider such an argument, however, for the powers and duties of the Authority have since been prescribed by Act of the General Assembly pursuant to the above-described amendment. Ga. Laws 1961, p. 3097.

OPINION 68-324 (Unofficial)

July 30, 1968

You have requested that this office advise you on two questions:
l. Can a constable for a militia district mark his automobile and enforce traffic regulations?

2. Is a constable entitled to fees from the county treasury for serving criminal warrants coming into his hands?

In answer to your first question, it is my understanding that a constable's duties consist primarily of making arrests by serving warrants issued by justices of the peace. The powers and duties of constables are discussed in 80 C.J.S., Sheriffs and Constables, 42(b) as follows:

"A constable is a peace officer with limited powers. As such peace officer, a constable has authority, and it is his duty, to arrest offenders against the laws, but he is not required to leave his ordinary occupation to act as a detective and search for offenders, and it is not a neglect of official duty for a constable to fail to cause the prosecution of persons for misdemeanors not committed in his presence."

In an unofficial opinion by this office, written on October 25, 1963 (Op. Atty. Gen. 1963-June 14, 1965, p. 296), it was decided that if an offense against a penal statute is being committed or was committed in the presence of a constable, he would have the

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right to mak~ an arrest. This authority is derived frow Ga. Code Ann. 27-207 which reads as follows:
"27-207. Arrest without warrant.-An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause where there is likely to be a failure of justice for want of an officer to issue a warrant."
It is clear that a constable in Georgia has the authority to arrest, without a warrant, a person violating penal statutes in his presence. Glaze v. The State, 156 Ga. 807 (1923). In addition, see Ga. Code Ann. 27-211. which provides that a private person may make an arrest; also Ga. Code Ann. 27-212 dealing with the duty of a person arresting without a warrant.
This power to arrest, however, does not grant the right to constables to direct, control, or regulate traffic. In Georgia a constable has been held to be a public officer. McCain v. Bonner, 122 Ga. 842 (1905). The Supreme Court of Georgia in State Revenue Commission v. National Biscuit Co., 179 Ga. 90, 101 (1934) set forth a standard by which the powers of public officers might be determined:
"In several decisions this court has stated broadly that public officers have only such powers as are granted to them by law, and 'take nothing by implication' [Baggerly v. Bainbridge State Bank, 160 Ga. 556, 561 (128 S.E. 766, and cit.)]; but a statement so sweeping could hardly be taken as excluding any possible exceytion or qualification. In Throop on public officers, 542, it is stated; 'The rule respecting such powers is, that, in addition to the powers expressly given by statute to an officer or a board of officers he or it has, by implication, such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as may be fairly implied from the statute granting the expressed powers.' [Citations omitted.] This principle as to implied powers has been recognized by this court." Accord, Taylor v. State, 44 Ga. App. 387, 395 (1931). See also Pennington v. Gamman, 67 Ga. 456; Garrison v. Perkins, 137 Ga. 744, 750, 751, 74 S.E. 541; Wright v. Floyd County, 1 Ga. App. 582, 58 S. E. 72.

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If a constable in Georgia has the authority to direct, control, or regulate traffic, it must be founded upon specific statutory powers or powers necessarily implied from the statutes. If a constable were to act outside of his authority, such act would have no legal effect. Peoples v. Garrison & Son, 141 Ga. 411 (1913).
Ga. Code Ann. Ch. 24-8 deals with constables. Ga. Code Ann. 24-817 specifies the following duties of constables:
"1. To attend regularly all terms of the justices court in their respective districts.
"2. To attend all terms of the superior courts of their respective counties, when summoned by the sheriff for that purpose.
"3. To give receipts for notes or other liquidated demands placed in their hands for collection.
"4. To pay over money promptly as collected to the party entitled thereto; and in cases of conflicting claims to any money, to report the same to the next justices court of the district where they are amenable, for its order in the premises.
"5. To execute and return all warrants, summonses, executions, and other processes to them directed by lawful authority.
"6. To perform such other duties as are or may be required of them by law, or which necessarily appertain to their offices."
Constables serve the justices of the peace in the militia districts in which they hold office. Because Ga. Code Ann. 24-817 does not specifically permit constables to regulate traffic, the implication of such authority must be grounded in their relationship with the justices court and its jurisdiction. Ga. Code Ann. 92A-50 1 confers jurisdiction for offenses related to traffic on public roads to the courts of ordinary, municipal courts and police courts of this State; justices courts have no jurisdiction to try such matters.
Based upon (1) the language in the Taylor and State Revenue Commissioner cases, (2) the duties of a constable as set forth in Ga. Code Ann. 24-817, (3) the lack of jurisdiction of the

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justict.s court to try traffic offenses, and (4) in the absence of specific statutory authority, it is my unofficial opinion that a constable has no general powers to direct, control, or regulate traffic on the roads of this State.
Although a constable lacks general traffic regulatory powers, he would have limited arrest powers under Ga. Code Ann. 68109 and 92A-509:
"68-109. Duty of arresting officers.- It is the duty of every arresting officer, both county, municipal and State, to enforce the provisions of Chapters 68-1 to 68-4. (Acts 1927, pp. 226, 243.)"
"92A-509. Arrests by highway patrolman or any arresting officer.-State Highway patrolmen and any officer of this State, or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this Chapter [Title] .... (Acts 1937-38, Extra. Sess., pp. 558, 561.)"
Ga. Code Ann. Chs. 68-1 to 68-4 deal with two general areas of traffic regulation: (1) licenses for motor vehicles (Ch. 68-2) and (2) regulation as to weight, size, etc. of trucks (Ch. 68-4 ). Title 92A provides for the establishment of the Department of Public Safety and contains three regulatory Chapters: (1) Ch. 92A-4, drivers' licenses; (2) Ch. 92A-6, motor vehicle safety responsibility; and (3) Ch. 92A-8, fireworks control.
Due to broad language employed in the above Code sections, it is my opinion that a constable could make arrests for violations of the above provisions of Ga. Code Ann. Cbs. 68-1 to 68-4 and Title 92A. However, the authority would be limited to those offenses. It should be noted that the justices court has no jurisdiction over these matters, so any arrest made pursuant to the above Code sections must be referred to a court with jurisdiction. Also, if a constable made such arrests, he would do so at his own expense and would be entitled to no fees as a result of said arrests, because Ga. Code Ann. 24-820 nor any other section of the Code provides for such compensation to constables.
In light of the preceding discussion, together with the limitations contained therein, it is my unofficial opinion that a constable may mark his vehicle as provided in Ga. Code

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Ann. 66-1707, said vehicle being used on official business "by any person authorized to make arrests for traffic violations in this State." I also call your attention to Ga. Code Ann. 68-413 which contains the following language:
"68-413. Unauthorized use of flashing blue lights on motor vehicles.- Except for motor vehicles belonging to any Federal, State, county or municipal police or fire department or ambulances, it shall be unlawful for any motor vehicle to be used upon the public roads of this State which shall have attached thereto in any manner a device which emits an alternately flashing blue light. (Acts 1966, p. 208.)"
This section would prohibit such a light on a vehicle operated by a constable because he is not considered a part of the class excepted.
In answer to your second question I am enclosing a copy of Ga. Code Ann. 24-820, as amended, which enumerates the fees for constables.

OPINION 68-325 (Unofficial)

July 31, 1968

This is in reply to your letter of July 26, 1968, asking whether the new schedule of fees to be paid for the services of sheriffs (Ga. Laws 1968, p. 988) would affect the advance deposits for court costs authorized by Ga. Code Ann. 24-3406 and 24-3407.
The answer to your question is found by examining the difference between a "fee" and a "deposit." A fee is a charge fixed by law for service of public officers. Black's Law Dictionary, 740, (4th ed., 1951). There are no fees except these that are expressly provided for by law. Atlanta Title and Trust Company v. Tidwell, 173 Ga. 499(6) (1931). A "deposit" on the other hand is, in this instance, in the nature of security which is lodged with the clerk to insure at least partial payment of court costs. This is manife~t by the language of Ga. Code Ann. 243406 which, after providing for a deposit of $15.00, provides for the division of such deposit proportionately between the clerk and the sheriff according to the duties performed by each "before the deposit is exhausted." (Emphasis added.) Said Code section provides further that if the costs are less than $15.00, "any of the

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sum remaining in the hands of the clerk, after paying the clerk and the sheriff, shall be repaid."
In construing statutes it is necessary to view the system of law as a whole to determine the intent and purpose of the law as applied to each particular state of facts. Lucas v. Smith, 201 Ga. 834, 837 (1947). Furthermore, it is necessary to harmonize Code Sections relating to the same subject matter whenever possible. Gillis v. Gillis, 96 Ga. 1 (1895). Applying such rules of construction to the above-cited statutes, I do not believe that the increase in sheriffs' fees serves to increase the amounts designated in Ga. Code Ann. 24-3406 and 24-3407 as advance deposits, but must be collected at the termination of the case as are other costs.

OPINION 68-326 (Unofficial)

July 31, 1968

This is in reply to your letter concerning the rental of surplus buildings located on parcels of land acquired as rights-of-way. Your questions are as follows: Does the Highway Department have authority to acquire land prior to its actual need for rightof-way purposes? Second, assuming that the Highway Department can acquire land prior to the time at which it is actually needed, does it have authority to lease such property during the interim between acquisition and use?
As a practical matter, the Highway Department will acquire the right-of-way for a particular project in separate transactions over a period of time. Consequently, some parcels of land will inevitably be held for at least a short period of time. Furthermore, there is reason to believe that even without legislation particularly spelling out a power to acquire land for future needs, the Highway Department may purchase land well in advance of actual construction so long as it does have plans to use the land for the purpose specified.
Fifteen states have statutes specifically authorizing land acquisition for future highway use: Arkansas, California, Colorado, Florida, Idaho, Louisiana, Maryland, Nebraska, Nevada, New Jersey, New York, North Dakota, Oklahoma, Virginia, and Wisconsin.

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In the absence of such a statute, the traditional "necessity" requirement must be met. Generally, the courts have not required a strict or formal necessity. Rather, the requirement has been construed as requiring "reasonable necessity."
It must also be noted that in the absence of bad faith, the exercise of eminent domain rests largely in the discretion of the authority exercising such right as to the necessity of the taking. Kellett v. Fulton County, 215 Ga. 551, lll S.E. 2d 364 (1960); King v. McCaysville, 198 Ga. 829, 33 S.E. 2d 99 (1945).
It would appear that more important than exactly when the land is to be used is the degree of certainty that the land will be used for the public use for which it was condemned.
The State Highway Department is a creature of the Georgia Constitution and the Georgia Legislature. Its powers and duties are derived from these two sources. The powers and duties delegated to the State Highway Department must be strictly construed, particularly those concerning condemnation. Butts v. Southeastern Pipe-Line Co., 190 Ga. 689 (1940).
I find no authority for the State Highway Department to rent or lease property it has condemned for right-of-way purposes. This is not based on a constitutional prohibition, but on the fact that the powers and duties granted to the State Highway Department do not authorize such action.
I see no constitutional barrier to the granting of such a power to the State Highway Deparrment by the Legislature.
Here is language in Ga. Code Ann. 95-2304, concerning the powers of the Georgia Highway Authority which is pertinent to the above problem:
"(b) To acquire, by purchase, lease, or otherwise, and to hold, lease and dispose of in any manner, real and personal property of every kind and character for its corporate purpose."
Perhaps you would like to recommend to the Highway Laws Revision Committee similar legislation for State Highway Department.
In the meanwhile, arrangements could be made for the county to handle all rental arrangements and collection with the State

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being reimbursed at periodic intervals. This, however, would depend upon the authority granted specific counties by the Legislature. I can find no general statute conferring this power upon counties, but it is my understanding that most larger counties have Special Acts of the General Assembly which permit them to rent surplus property for public benefits.

OPINION 68-327

July 31, 1968

This is in reply to your letter asking for my o,fficial opinion on the following questions:
"l. Is it lawful for a public school teacher to seek public elective office within the same school district in which he is performing his contractual obligations as a teacher?"

"2. Is it lawful for a State employee to serve on an elective board in the county in which he is employed?"

I am aware of no statute of the State of Georgia which would make it unlawful for a public school teacher or a State employee to seek county elective office. For instance, Ga. Code Ann. 89103 which prohibits any person from holding more than one county office, has been held not to apply to public school teachers because the position of teacher is "employment" arising from a contractual relationship as opposed to an "office" which is created by law. Board of Education of Doerun v. Bacon, 22 Ga. App. 72(1918).

Although there is no statutory ban against such employment, there may be other considerations affecting such employment. At common law, for example, public officers have consistently been prohibited from holding two incompatible positions at the same time because of the conflict of interests presented by being both master and servant. 67 C.J.S., Officers, 23. Thus, while a teacher could legally "seek" such an office, he or she might be forced to choose between the office and the employment if "to hold" such an office results in a conflict of interests.
Similarly, a State employee might be precluded from holding county elective office by virtue of Rule 16 of the State Merit System which provides:
"No employee under the Merit System shall hold other

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publi"' office or have conflicting employment while in the employ of any of the Departments under the Merit System. Determination of such conflict shall be made by the appointing authority concerned."

OPINION 68-328 (Unofficial)

August 1, 1968

This will acknowledge receipt of your letter transmitting a bill of sale transferring title to a certain 1953 Ford armored truck to the Department of Public Safety. Quoting from the document itself, the seller agrees to "grant, bar gain, sell, transfer and deliver" a described vehicle.
Following the language conveying title to the vehicle are the following conditions:
"TO HAVE AND TO HOLD the same under the following terms and conditions:
"1: The truck must be repainted other than the Brink's, Incorporated colors before it is put in use by the Georgia State Patrol.
"2: It must not be used to transport or convoy valuable commodities.
"3: The Georgia State Patrol may not give, lease, assign or sell this vehicle to anyone but at such time that they wish to dispose of said vehicle, it is agreed that they will dismantle and destroy the truck in the presence of Brink's and according to the standards set forth by Brink's.
"4: The Georgia State Patrol agrees to indemnify and hold harmless Brink's, Incorporated, its employees and agents for any liability, personal injury and property damage incurred whatsoever resulting from any and all use of said vehicle by the Georgia State Patrol."
The last paragraph of this agreeement provides that the vehicle "will be returned to Brink's, Incorporated if any of the conditions listed above are violated."

Although neither your letter nor the agreement reflects the operating condition of this vehicle, I have been orally informed by

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a high ranking member of the Department of Public Safety that this vehicle is not in operating condition and will require the installation of a new motor before it may be used.
Except for provisions inapplicable in this instance, Art. VII, Sec. I, Par. 2(1) of the Georgia Constitution prohibits the grant of "any donation or gratuity in favor of any person, corporation or association." So long as there is a possibility that the vehicle must be returned to the seller, potential constitutional problems may arise which address themselves to the installation of the new motor and the repainting of the vehicle. Obviously, repainting th~ vehicle and the installation of a new motor constitute improvements to the vehicle involving the expenditure of State funds. The significance of the potential constitutional problems is reduced by my discussion related to the third condition specified in the bill of sale.
I object to the second condition specified in the bill of sale for the reason that the same is too vague and ambiguous. As written, the condition might well prohibit hauling any goods and chattels in this vehicle. The defects in this condition can be easily cured by employing more specific language.
I object to condition three of the document in its entirety. Insofar as the condition prohibits the donation, lease, assignment or sale of the vehicle, the same constitutes an illegal, unenforceable and void restraint upon alienation. Farkas v. Farkas, 200 Ga. 786 (1946); Crumpler v. Barfield and Wilson Company, 114 Ga. 570 (1901); Free111an v. Phillips, 113 Ga. 589 (1901); and Alderman v. Crenshaw, 84 Ga. App. 344 (1951). Insofar as condition three of the bill of sale requires the destruction of the vehicle when it is no longer needed by the Department of Public Safety, the condition violates Ga. Laws 1968, p. 1148. The 1968 Act provides alternative methods for the disposal of State property through the office of the Supervisor of Purchases. In this connection, Section 2 of the 1968 Act provides that personal property may be destroyed upon the order of the Supervisor of Purchases and after his determination that the property has no value. The Department of Public Safety may not, however, agree to a plan for the disposition of State property which does not comport with statutory requirements which are binding upon the Department.
I object to condition four of the agreement in its entirety for

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the following reasons: (l) the State may not grant any gift, donation or gratuity to anyone [Art. VII, Sec. I, Par. 2(1) of the Constitution]; and (2) the credit of the State may not be pledged or loaned to any individual, company, or corporation. Art. VII, Sec. Ill, Par. Ill.
I observe that the document is signed by one D. R. Hoagland, who is apparently a Vice President of Brink's, Incorporated. I further observe that the document does not have attached to it a certificate under the seal of the corporation by the Secretary of the corporation certifying that Mr. Hoagland has the authority to enter into this agreement. I would suggest that any agreement with this corporation include the Secretary's certificate under seal.
For all of the foregoing reasons I am unable to approve the agreement submitted to me. It is my advice to the Department of Public Safety not to enter into this contract. I shall be pleased to meet with you in an attempt to work out a proper agreement if you so desire.
OPINION 68-329 (Unofficial)
August 2, 1968
Responding to our telephone conversation yesterday, I find that to be eligible for the office of County Commissioner of Effingham County, a person must be:
(l) a resident freeholder for five years prior to the election; and
(2) thirty years of age; and
(3) eligible for election to the General Assembly. Ga. Laws 1921, p. 466.
A "freeholder" is one who owns land in fee or for life, or for some indeterminate period. State v. Rogland, 75 N.C. 12, 13; Harkin v. State, 106 La. 333; 33 So. 858, 859. 17 A Words and Phrases, p. 308, et. seq. Where the Act creating a board of county commissioners provides that said commissioners shall be freeholders, a person must be a freeholder to be eligible to hold office as commissioner. Thornton v. McElroy, 193 Ga. 359 (1942). Although a statute which is pleaded as a barrier to the

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eligibility of a person to hold public office will be strictly construed [Morgan v. Crow, 183 Ga. 147 (1937)], I am aware of no principle of statutory construction which would vitiate the clear and unequivocal requirement that a person have been a freedholder for five years preceding the date of election. Accordingly, I do not believe that a person who has not been a freeholder for the requisite number of years would be eligible for the office of Commissioner of Roads and Revenues in Effingham County.
If an ineligible person has nevertheless been appointed to public office, is in possession of it, and is performing the duties of the office under color of appointment, his acts are valid as a de facto officer. Tarpley v. Carr, 204 Ga. 721(1) (1949).

OPINION 68-330 (Unofficial)

August 2, 1968

In your letter you state that certain automobile dealers have not paid their ad valorem tax on motor vehicles which were in their inventory on January 1, 1968. You ask under what law should an execution be issued for these taxes and whether a penalty should be included.

As you know, the Motor Vehicle Ad Valorem Tax Act was amended by Ga. Laws 1967, p. 91, to allow dealers to return their inventory of motor vehides on the first work day after January 1, and to pay the ad valorem tax on such vehicles on or before April l, of such calendar year. When a dealer fails to pay the tax on April 1, the taxes become delinquent and the tax collector is authorized and required by Ga. Code Ann. 92-7401 to issue a tax execution for these delinquent taxes. The execution would include a penalty of lO percent as set out in Ga. Code Ann. 921508, Ga. Laws 1966, pp. 517,520. The tax execution shall also bear interest at the rate of 7 percent per annum as set out in Ga. Code Ann. 92-7601.

OPINION 68-331 (Unofficial)

August 5, 1968

You have as ked whether or not the additional contributions made by a judge of the superior courts in order to be entitled to

47R
the benefits proVIded by Section 2 of Ga. Laws 1968, p. 275 would be repayable if he fails to qualify as judge emeritus. My answer is in the affirmative, based upon a reading of the 1968 amendment in context with the entire amended Act. Botts v. Southeastern Pipeline Co., 190 Ga. 689 (1940). I can imagine no reason why Ga. Code Ann. 24-2615a should not be as applicable to the return of those contributions as it is to the return of other contributions under the amended Act.
A second and related quesion is whether a widow of a judge who dies after having served two thirds or more (but less than all) of the time required for appointment as judge emeritus is entitled to any partial benefits or whether she merely receives a return of his contributions. It appears to me that a return of contributions would result under the terms of Ga. Code Ann. 24-2615a. I have been unable to locate either in the 1968 amendment or the Act as previously amended any provisions granting benefits (other than return of contributions) in instances where a judge has not served the appropriate time required for appointment to emeritus status. See Ga. Laws 1968, p. 275, Ga. Code Ann. 24-2602a, 24-2610a, 24-2611a and 24-2612a.
Your third question is whether the benefits provided by the 1968 amendment would be available if a judge were to suffer total disability prior to attaining his sixtieth birthday. The 1968 amendment specifically provides:
"Any judge so electing shall not be eligible for appointment as Judge Emeritus until he is at least sixty years of age, except he may be appointed Judge Emeritus before reaching such age as a result of disability as provided in this Act." Ga. Laws 1968,pp.275,276.
Thus, the 1968 amendment does not impose a requirement as to disability appointments that the judge must have attained age sixty. Whether, however, other provisions of the amended act create an age requirement with respect to disability appointments is quite a different question.
The question of whether or not a judge is entitled to disability benefits depends upon a proper construction of Ga. Code Ann. 24-2602a, 24-2610a(b)(2), 24-26lla(b)(2) and 242612a(b)(2). The latter two sections contain an express requirement that the judge in question shall have attained age 62 whereas no such requirement is stated in the former two sections.

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The legislative his!ory of these four sections sheds some light upon the intent of the General Assembly and suggests the construction which I believe a court should adopt. The age 62 requirement first was introduced into the amended Act by Ga. Laws 1953 (Nov.-Dec. Sess.), pp. 108, 109-114, appearing then in Sections 2, 11 and 12 thereof, these being, respectively, Ga. Code Ann. 24-2602a, 24-2611a(b)(2) and 24-2612a(b)(2). In 1960 the General Assembly reenacted Section 2, leaving out the age 62 requirement. Ga. Laws 1960, pp. 161, 163. However, no subsequent amendment has expressly removed this requirement from Sections 11 and 12.
I would hope that a court would construe the 1960 amendment as an implied repeal of the age 62 requirement rather than straining to harmonize these various sections. Nash v. National Preferred Life Insurance Company. 222 Ga. 14, 21 (3) (1966). Thus, I would prefer a construction which would entitle a superior court judge to disability benefits although he has not attained either age 62 or 60, provided he otherwise meets the requirements of the amended Act. If such a judge makes the election provided by the 1968 amendment, fully complies with the terms of that amendment, and dies after being entitled to disability benefits, it would be my opinion that his widow thereby would be entitled to the benefits provided by the 1968 amendment instead of being forced to accept a return of contributions in accordance with Ga. Code Ann. 24-2615a.

OPINION 68-332 (Unofficial)

August 6, 1968

You wished to be advised as to whether or not a conveyance of an undivided one-eighth interest in and to all of the oil, gas and other minerals of every kind and character in, on or under various tracts of land would be subject to the Georgia Real Estate Transfer Tax Act, Ga. Laws, 1967, p. 788 (Ga. Code Ann. 92801).

The pertinent section reads as follows:
"There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed

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to, or vested in, the purchaser or purchasers, or any other person or persons, by his or her direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or incumbrance reamining thereon at the time of the sale) exceeds $100, a tax at the rate of 50 cents for the first $500 or fractional part thereof, and at the rate of lO cents for each additional $100 or fractional part thereof."
From your description of this instrument it is a sale of certain mineral rights. Mineral rights are an interest in realty'. Therefore, this transfer is subject to the above tax provided the consideration paid for or the value of the interest meets the requirements of the Act.

OPINION 68-333

August 6, 1968

You request my official opinion delineating your authority and responsibilities in regard to the new division within your department created by the Georgia Surface Mining Act of 1968, Ga. Laws 1968, pp. 9-19. Specifically, you inquire whether you as director have any supervisory function as concerns the fiscal or personnel administration of said division.

The Surface Mined Land Use Board has been designated by the General Assembly as "an autonomous division of the Department of Mines, Mining and Geology" (Ga. Laws 1968, pp. 9, 11) and is expressly empowered to discharge certain enumerated duties and those others incident thereto. Ga. Laws 1968, pp. 15 and 16.

The cardinal rule of construction to be looked to in giving effect to any statute is that the ordinary signification shall be applied to all words, except words of art. Ga. Code Ann. 102-102(1), Southern !Jell Telephone v. Parker, 119 Ga. 721 (1904). Use of "autonomous" by the Legislature in designating the relation of the new Board to the Department of Mines, Mining and Geology manifests its intent that the Surface Mined Land Use Board be an independent division within such department free from any except nominal departmental influence or control. See Webster's New International Dictionary (2d Ed.).

Therefore, it is my official opinion that your only responsibility in connection with this division is to serve as an administrative

481
conduit to facilitate appropriation of monies by the Legislature, except of course for those particular duties expressed in the Surface Mining Act of 1968, to-wit: to receive service of copy of appeal to Superior Court by a party aggrieved or adversely affected by action of the Board, and to submit the names of qualified geologists for appointment by the Governor to the Board as vacancies occur in the position representative of your Department.

OPINION 68-334 (Unoffij::ial)

August 7, 1968

The law pertaining to registration is found in Ga. Code Ann. Ch. 34-6 and commences on page 18 of the enclosed booklet. From the information contained in your letter, it is possible that you are still registered in Fulton County (see Ga. Code Ann. 34-620). If you have moved within the State since the time of your previous registration and if your new residence complies with the rules set out in Ga. Code Ann. 34-632, you may transfer your registration in accordance with the provision found in Ga. Code Ann. 34-631. If, on the other hand, your previous registration has lapsed, and your residence is within this State according to the rules set forth in Ga. Code Ann. 34-632, you may apply for absentee registration as provided in Ga. Code Ann. 34-619.

If your prior registrati.on is valid, you have until August 26, l968, to transfer your registration in time to vote in the general primary, and until October 18, 1968, to vote in the November election. Ga. Code Ann. 34-631 (c).
If your prior registration has lapsed, it is already too late to register for the primary, but you will have until September 16, 1968, to register to vote in the November election. Ga. Code Ann. 34-624, 34-625, 34-1402(c).

OPINION 68-335 (Unofficial)

August 7, 1968

I have searched the State election laws and have concluded that there is no clearly-defined answer to your question of whether a

482
question may be submitted to the electorate by primary ballot or by other means in a primary.
As I understand it, the General Assembly, by local statute, directed that a certain question be submitted to the electorate of Wayne County in a special election to be held on the second Wednesday in September, 1968. Ga. Laws 1968, p. 3361. The second Wednesday of September, 1968, is also the date specified in the Georgia Election Code for conducting the primary. Ga. Code Ann. 34-801.
It is clear that, if repugnant to the general law contained in the election code, the local statute described above must fail as being in contravention of Art. I, Sec. IV, Par. I of the Constitution (Ga. Code Ann. 2-401). Studsi/1 v. Gary, 216 Ga. 268 (1960). It is also clear that the judiciary will if possible, construe the statute in such a manner as to give it effect. Wei/maker v. Terrell, 3 Ga. App. 791 (la) (1907).
The Georgia Election Code provides that every special election on a proposed question ". . . shall be held and conducted in all respects in accordance with the provisions of this Code relating to general elections and the provisions of this Code relating to general elections shall apply therto, insofar as practicable, and not inconsistent with any other provision of this Code." (Emphasis added) Accordingly, the question boils down in the final analysis of what is practicable under all the facts and circumstances of a particular situation. In other words, construction of the abovecited local statute must square with common sense and sound reasoning. Blalock v. State, 166 Ga. 465 (1928). Accordingly, I believe that if it is possible to submit the question to the electorate voting in a primary in such a manner as to comply with the provisions of the law relating to general elections or, if there must be a deviation therefrom, to insure that there will be no violation of the voters' rights, then it would be lawful to do so.

OPINION 68-336 (Unofficial)

August 8, 1968

This is in reply to your request for an opinion whether the Sheriff of Dougherty County is entitled to receive penalties for his

483
endorsement of delinquent applications for motor vehicle license plates.
Ga. Code Ann. 68-201 provides that penalties on delinquent motor vehicle license plate applications shall be paid by the State Revenue Commissioner to the endorsing chief of police or sheriff with the exception that in those cities or counties with a population in excess of 135,000 the penalties imposed shall be paid to the fiscal authorites of such cities or counties.
Since Dougherty County's population is less than 135,000 the above noted exception would not apply. Therefore, the sheriff would be entitled to receive these penalties unless the Act which placed the Office of Sheriff of Dougherty County on a salary basis requires a different conclusion.
The question which you present was before the State Supreme Court in the case of DeKalb County v. Broome, 215 Ga. 203 (1959). In the Broome, case the Court held that the Sheriff of DeKalb County in endorsing delinquent motor vehicle license plate applications was acting as an agent for the State Revenue Commissioner and was therefore entitled to receive such penalties since the Act placing his office on a salary basis provided that only those fees ~hich he earned in his official capacity as sheriff should be paid ilito the county treasury. It should be noted that at the time this case was decided the poulation exception in Ga. Code Ann. 68-20 l was 300,000.
Section 8 of the DeKalb County Salary Act (Ga. Laws 1956, pp. 2915, 2919, as amended) provides for the disposition of fees formerly received by the sheriff. It reads in part as follows:
"Be it further enacted by the authority aforesaid that all fees and commissions, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind which shall be allowed by law after the effective date of this Act, to be received or collected for services rendered by any officer herein named shall be received and collected by all of said officers and each of them for the sole use of DeKalb County, Georgia, . . ."
Compare the above Section with the corresponding Section in the Dougherty County Salary Act (Ga. Laws 1955, pp. 2874, 2876).

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"All fees, costs, percentages, forfeitures, penalties, allowances, and all other perquisites of whatever kind which are now or may hereafter be allowed by law to be received or collected as compensation for service by any of said officials or their deputies, including compensation received or collected by such officials or their deputies for serving as bailiffs, shall be received and diligently collected by all of said officials and each of them, for the sole use of Dougherty County, and shall be paid as public moneys belonging to Dougherty County . . . ."
It can be seen that these two Sections are practically identical, consequently the rule in the Broome case, supra, would be applicable to the question you present. I therefore conclude that the Sheriff of Dougherty County is entitled to receive the penalties for his endorsement of delinquent motor vehicle license plate applications.
This situation can be changed only by an amendment to Ga. Code Ann. 68-201 which would decrease the population exception to include Dougherty County or by appropriate special legislation to amend the Sheriff's Salary Act to deal specifically with the disposition of these penalties.

OPINION 68-337 (Unofficial)

August 9, 1968

This is in reply to your request concerning interpretation of the Georgia Election Code provisions relating to polling places for political parties in primaries. You point to Ga. Code Ann. 34705(c), as a directive to the ordinaries to select and fix separate polling places for each party, except as otherwise provided in the Code.

You have noted in your Jetter that it is the position of the State Election Board that primaries conducted by different political parties should be conducted at the same polling place.
I assume that the State Election Board bases its decision upon that provision of Ga. Code Ann. 34-705(a) which provides that "The Ordinary shall select and fix the polling place within each election district . . . ,"upon Ga. Code Ann. 34-103(f) which defines the words "election district" to mean a district "within

485
which all electors vote at one polling place," upon Ga. Code Ann. 34-103 (w) which defines the words "polling place" to mean "the room provided in each election district for voting at a primary or election," upon Ga. Code Ann. 34-l303(b) and 34-1308(c) relating to the list of electors, and upon Ga. Code Ann. 34-624 which prohibits an elector voting in the primary held by one party from voting in the primary held by any other party for the nomination of candidates to seek public offices to be filled in the same election.
As the State Election Board has the duty, under Ga. Code Ann. 34-202, to supervise and coordinate the work of election officials so as to obtain uniformity in their practices and legality and purity in all primaries, and as this office is charged by Ia w with the responsibility of representing the State Election Board, I believe that it would be improper for me to render an opinion contrary the Board's recommendation under these circumstances.

OPINION 68-338

August 9, 1968

This responds to your request for an official opinion on seven questions relating to the Act governing the office of judge of the superior courts emeritus. Ga. Code Ann. Ch. 24-26A. Each question is quoted, followed by my opinion and the reason therefor.
"l. Under Code Section 24-26lla, Sub-section 1, can a judge who has reached his 68th birthday and has 10 years service as Judge of the Superior Court and has complied with the requirements as to payments, retire as a Judge Emeritus at 1/2 the then state salary?"
I am of the opinion that this question should be answered in the affirmative, subject to the qualification that the applicable sections are Ga. Code Ann. 24-2602a, 24-2610a(b)(l), and 2426lla(b)(l). Although Ga. Code Ann. 24-2612a(b)(l) provides that a judge must have attained age 70 and be in at least his eleventh year of service before being entitled to such benefits, I am of the opinion that it has been impliedly repealed by the subsequent Acts of the General Assembly which form the basis for the first-cited sections of Ga. Code Ann. Nash v. National Preferred Life Insurance Company, 222 Ga. 14, 21 (3) (1966).

486
"2. If the answer to Question 1 is in the affirmative, is the judge also entitled to 1/2 of the supplement paid by the county (Code Section 24-2604a)?"
The answer to this question must be in the negative. Ga. Code Ann. 24-2604a has not been amended since the office of judge of the superior courts emeritus was established in 1945. Ga. Laws 1945, p. 362. It provides now, as it did then, an emeritus salary based upon two-thirds of former State and county salaries as judge of the superior courts. Subsequent Acts of the General Assembly providing reduced benefits for shorter periods of service, first enacted in I953, have spoken only in terms of one-half of former State salary and have made no mention of county salary. Ga. Laws 1953 (Nov.-Dec. Sess.), p. 108; Ga. Code Ann. 242610a(b)(I) and 24-26lla(b)(I). The reference to "one-half of the salary paid" found in Ga. Code Ann. 24-2612a(b) should be construed to mean one-half of State salary alone since this provision was a section of the same Acts which form the basis of the two sections last cited. It thus appears that emeritus salary is based upon two-thirds of former State and county salary if the judge is entitled to full benefits under the Act whereas emeritus salary is based alone upon one-half of former State salary if the judge only is entitled to receive reduced benefits. For the applicable rule of statutory interpretation, see Burks v. Board of Trustees, 2I4 Ga. 25I, 254 (I958).
"3. If the answer to Question I is in the affirmative and the judge avails himself of the provisions of the Act approved March 11, 1968 (SB 31, Act 700), will his widow receive the salary, subject to the provisions of the said Act, to which he was entitled for the remainder of her life?"
In my opinion this question deserves an affirmative answer, subject to the qualification that the benefit she receives must be adjusted iQ the manner provided in the 1968 amendment in the event she is younger than her deceased husband and has not been married to him for at least twenty years prior to his death. Ga. Laws 1968, p. 275.
"4. If a judge elects under Act 700 to have his wife receive the benefits of said Act and he leaves office prior to becoming eligible as Judge Emeritus of the Superior Court . . . will the payments be refunded to him?"

487
This question also should be answered affirmatively. Reading the 1968 amendment in context with the entire amended Act, it appears that Ga. Code Ann. 24-2615a should be as applicable to the return of contributions made under the 1968 amendment as it is to the return of other contributions under the amended Act. Opinion 68-331.
"5. If a judge elects to have his widow receive the benefits of Act 700 and he dies prior to becoming eligible for appointment as Judge Emeritus, will his wife be eligible for the payments under the Act due him on the date that he would have become eligible under any provision of the Emeritus Act? If the answer to this question is in the negative, would she be entitled in case she is still living or his estate in case neither are living to a refund of the contributions made?"
Under the express terms of the 1968 amendment, the benefits provided therein are not payable unless the judge either was serving or was eligible for appointment as judge emeritus at the time of his death. Ga. Laws 1968, p. 275. Therefore, the first question must be answered negatively. In the event those conditions are not met, a return of contributions would be required under the provisions of Ga. Code Ann. 24-26l5a. Thus, the second question is answered in the affirmative.
"6. In case the judge and the wife meet every qualification and actually receive benefits under the provision of the Act, but the total of their combined payments is less than the contribution made, would the estate be entitled to the balance?"
This is a difficult question, the answer to which must be provided by the General Assembly or the courts. A similar and related question was included within a portion of your fourth question which I omitted in the discussion above, that is, whether a judge of the superior court will be entitled to a refund of payments made under the 1968 amendment in the event his wife predeceases him. Returns of contributions are covered by Ga. Code Ann. 24-26l4a and 24-26l5a which were not amended in 1968. The language of those sections was designed to provide answers to various questions as to returns of contributions which could arise prior to the 1968 amendment but simply was never designed, nor in my opinion can it reasonably be construed, as

488
providing answers w the two questions you have raised related to
matters which were legally irrelevant prior to that amendment. The most conservative approach would be to assume that the amended Act simply does not provide for a refund under the stated circumstances and hence that no such right exists. Burks v. Board of Trustees, supra. Hence the answer to both questions should be in the negative.
"7. In determining the benefits to the widows under Act 700, is it not true that in case she and her husband were married twenty years, she is entitled to the same benefits as his under the Emeritus Act? That in determining the amount due her in all cases when they have not been married twenty years, would it not be necessary to apply the actuarial tables in respect to her age as compared to his to determine the amount due her and the length or date of the marriage would play no relevant part?"
I believe the following is a complete analysis of the actuarial equivalency provisions of the 1968 amendment:
1. If the widow is of the same age as the judge or older, she is entitled to receive a benefit equal to the amount the judge was receiving or would have been entitled to receive. This is the case irrespective of the date of their marriage.
2. If she is younger than he and they were married less than twenty years prior to his death, then the benefit payable to her nust be converted to the actuarial equivalent on her attained age at the time of his death based on actuarial tables adopted by the trustees on the recommendation of an actuary selected by the trustees.
3. If she is younger than he but they were married at least twenty years prior to his death, then she is entitled to receive benefits equal in amount to what he was receiving or was entitled to receive.

OPINION 68-339 (Unofficial)

August 12, 1968

You inquired as to whether the Welfare Department (State Department of Family and Children Services) is required to pay

489
transportation expenses to a State institution for persons who are not receiving State welfare benefits, but who are eligible for treatment under the rules of the Health Department at a State institution.
This is to ad vise you that I am not aware of any statute in Georgia which requires the Georgia State Department of Family and Children Services to provide transportation expenses for persons to State institutions who are not receiving welfare benefits. Additionally, I have been advised by the Director, Division of Social Administration, State Department of Family and Children Services, that there are no appropriations of funds nor provisions in the Rules and Regulations of the State Department of Family and Children Services requiring the Department to cover the transportation expenses of the persons to whom you referred.
Therefore, in answer to your question, it is my unofficial opinion that the State Department of Family and Children Services is not required to pay the transportation expenses of a person to a State institution who is not receiving State welfare benefits.

OPINION 68-340 (Unofficial)

August 12, 1968

This is in response to your letter expressing concern as to the measure of the tax on a lease of real property for a period of fifteen years.

The Georgia Real Estate Transfer Act, Ga. Laws 1967, p. 788 (Ga. Code Ann. 92-801, et seq.) reads in part as follows:

"What transfers taxable, amount.-There is hereby imposed, on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in the purchaser or purchasers, or any person or persons, by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance remaining thereon at the time of sale) exceeds $100, a tax at the rate of 50 cents for the first $500

490
or fractional part thereof, and at the rate of lO cents for each additional $100 or fractional part thereof." (Emphasis added).
An estate for years is subject to the above transfer tax, Opinion 68-157. A lease for fifteen years which does not by its own terms purport an intention to convey a less interest will be presumed to convey an estate for years. Westinghouse v. Wetherbee, 203 Ga. 483 (1948).
The above-quoted section of the Georgia Real Estate Transfer Act was lifted word for word, except for the rate of the tax and the last sentence pertaining to the termination of the tax, from the federal government's documentary stamp tax on conveyances, 26 U.S.C.A. 4361, as amended. The administrative regulations applicable to 26 U.S.C.A. 4361 when it was in effect were found in Volume 2 of the Federal Tax Regulations (1967) under Documentary Stamp Taxes, Tax on Conveyances, 43-4361-1 (b) which read in part as follows:
"The tax is based upon the net consideration where it is definite in amount, or may be definitely determined. The tax is based upon net value determination where the amount of consideration is indefinite, or is left open to be fixed by future contingencies."
There can be little doubt, except in very unusual circumstances, that the rental agreed upon is the consideration for a lease or a conveyance of an estate for years. See Mitchell, Real Property in Georgia, Estates Less Than Freehold, p. 152 (1945). Therefore, if the consideration (rent) is definite or may be definitely determined it then is the measure of the tax imposed upon the transfer.
If the tax under discussion was a tax on the property itself or an ad valorem tax instead of a tax on a transfer of real estate, then, the measure of the tax would be value of the leasehold estate, see Delta Air Lines v. Coleman, 219 Ga. 12 (1963), however, the Georgia Legislature has determined to place a tax on the transfer of interest in real estate and to make the measure of that tax the consideratiOn paid for the interest.

OPINION 68-341

August 12, 1968

This is in reply to your letter to which you attached a copy of

491
a proposed lien statement to be filed pursuant to Ga. Code Ann. 32-2321 in connection with the furnishing of rehabilitation services. My comments on the statement which you submitted are as follows:
1. I am doubtful if the presently contemplated lien statement for an "unspecified sum" for services to be furnished in the future would constitute a valid lien under Ga. Code Ann. 32-2321. The Code section, among other things, specifies that the statement of the lien claim must set forth "the amount claimed to be due for such vocational rehabilitation services." It would seem to me that this language contemplates a definitely ascertained sum claimed to be due and owing at the time the lien statement is filed and not an unknown amount which may or will become due and owing in the future. Accord, Hospital Authority of the City of Augusta v. Boyd, 96 Ga. App. 705 (1957), Dawson v. Hospital Authority of Augusta, 98 Ga. App. 792 (1958).
2. While the proposed lien statement contemplates that a notary will witness the signature, I do not believe this is sufficient. The Code section (i.e. Ga. Code Ann. 32-2321) states that the lien shall be perfected by the filing of a "verified" statement setting forth the various facts specified in the statute. It would seem to me that inasmuch as the statute requires that the lien be filed by the "State Board of Vocalional Education" (not the State Board of Rehabilitation as currently indicated), it should be signed by the Chairman of the Board, James S. Peters, and attested by its Executive Secretary, Jack P. Nix, but separately verified by the Counselor or other individual of the Rehabilitation Division having knowledge of the facts involved.
3. Finally, I have some question as to whether it is proper for the lien statement to expressly subordinate the lien of the State Board of Vocational Education to other claims. This is not to say, of course, that such other properly recorded liens, such as hospital liens, or valid and properly recorded security instruments of doctors, or any bank furnishing funds to pay for medical expenses, etc. would not have priority over the statutory lien in question. In such event, however, they would have their priority by operation of law rather than agreement on the part of the State Board. In general,

492

state officers are wholly without power to enter into agreements which compromise state claims and I am not aware of any statute which would authorize such a compromise here.
For such help as it may be to you, I have worked up a form for a lien statement which could be used in such situations as arise under Ga. Code Ann. 32-2321 and am enclosing the same herewith.
GEORGIA, ________COUNTY

LIEN CLAIM

The STATE BOARD OF VOCATIONAL EDUCATION, an

agency of the State of Georgia whose principal office is located

in the State Office Building, Capitol Square, Atlanta, Georgia,

30334, hereby claims a lien in the total amount of$_ _ __

upon any and all causes of action accruing to _ _ _ _ _ _ _ _ _ (Name of individual) whose address is __________ , as the result of ________

________ (Type of accident, i.e. "automobile," etc.) in

_ _ _ _ _County,

(State), on _ _ _ _ __

(Date). Said lien, which is claimed as extending to any and all

damages, settlements or awards recovered through or as the result

of the aforesaid cause or causes of action, arises under Ga. Laws

1959, pp. 343, 344 (Ga. Code Ann. 32-2321) for vocational

rehabilitation services rendered to the said _ _ _ _ __

(Name of individual) by the Division of Vocational Rehabilitation

at the instance of the State Board of Vocational Education. To

the best of claimant's knowledge, the names and addresses of all

persons, firms or corporations claimed by the injured individual

(or his legal representative) to be liable for damages arising from

his injuries in the above specified accident are as follows:

l. - - - - - - - - - - - - - - - - - - - (Name and address)
2. - - - - - - - - - - - - - - - - - - - (Name and address)
3. - - - - - - - - - - - - - - - - - - - (Name and address)
Please take note that under Ga. Laws 1959, pp. 343, 344 (Ga. Code Ann. 32-2321) any purported release of the aforesaid

493
cause or causes of action or any judgment thereon, or any covenant not to sue thereon, is invalid and ineffectual as against claimant in the absence of claimant's joining therein.
This _ _ _ day of_ _ _ _ _ _ _ , 19_ _.

ATTEST:

JAMES S. PETERS, Chairman STATE BOARD OF
VOCATIONAL EDUCATION

JACK P. NIX, Secretary STATE BOARD OF VOCATIONAL EDUCATION

VERIFICATION

Personally appeared before the undersigned officer authorized

by the law of Georgia to administer oaths,

(Counselor),

who upon being first duly sworn, states and deposes that the facts

set forth in the within and foregoing lien claim statement are true

and correct.

This _ _ _day of ________ , 19_ _.

Sworn to and subscribed before me this ____ day of _________ , 19_ --

(Deponent) (Title)

NOTARY PUBLIC

OPI~IO~ 68-342 (Unofficial)

August 14, 1968

You requested information as to where ad valorem tax returns are to be made where the property crosses county lines.

494
Generally, property "subject to taxation, whether improved or unimproved [is] to be returned by the person owning same . . . to the tax receiver of the county where the land lies. . . . " Ga. Code Ann. 92-6206.
However, there are several exceptions to this general rule:
(l) Ga. Code Ann. 92-6209 relates to the returns of real property by certain companies (not required to return their property to the Revenue Commissioner) where the property lies on or across county lines. Such property is to "be returned to the tax receiver of the county wherein are located the main buildings containing the machinery or most of the main buildings, except that all canal and slackwater navigation companies shall make, through their respective executive officers or agents, returns to the tax receiver of each county in which the same shall pass in whole or in part, of the right of way, locks, and dams, tollhouse structures, and all other real estate owned or used by said companies
"
(2) ''92-6211. Wild lands, returns where lands on or across county lines-The owner of any wild lots or tracts of land through which county lines may run shall be allowed to return said lots or tracts of land in either county containing any portion of said lots or tracts of land . . . ."
From your letter I presume that the farm is either improved or unimproved land and is not wild land.

OPINION 68-343 (Unofficial)

August 14, 1968

This letter is in response to your request for an interpretation of Ga. Laws 1968, pp. 434, 435 (House Bill No. 886), entitled "Witness Fees of Peace Officers." Specifically, you wanted to know how the new Act would apply to municipal police officers testifying in the RosJville Municipal Court and the "City-County Court at La Fayette."

OPINION

The Act would permit any municipal police officer to receive a prescribed witness fee under the following conditions:

495
(1) That he be subpoenaed to appear before either (a) the City Court of Walker County (City-County Court of La Fayette); (b) the Lookout Mountain Circuit Superior Court in La Fayette; or (c) any other court having jurisdiction to enforce State penal laws (Ga. Laws 1968, pp. 434,435);
(2) That the claim for witness fees be endorsed and verified on the subpoena, showing the dates of attendance and that the attendance was required during the off-duty hours of the claimant. (Ga. Laws 1968, pp. 434,435);
(3) That the dates of attendance be certified by the judge, the solicitor general, or the solicitor of the court attended (Ga. Laws 1968, pp. 434,435);
(4) That the chief of police certify that the claimant has been paid no additional compensation or given any time off on account of such service (Ga. Laws 1968, pp. 434,436);
(5) That only one witness fee per day is claimed (Ga. Laws 1968, pp. 434,436).
The officer would not be able to claim a witness fee under this Act if he were subpoenaed to the Municipal Court of Rossville, since that Court does not have jurisdiction of State penal offenses or State traffic offenses under the Georgia State Highway Patrol Act of 1937. See Ga. Laws 1947, pp. 1300, 1324; Constitution of Georgia, 2-4102; Ga. Code Ann. 92A-502; Ga. Laws 1957, pp. 2561 ,2566(15), which grants jurisdiction over misdemeanor grade traffic offenses under the Highway Patrol Act of 1937 to the City Court of Walker County.

OPINION 68-344

August 15, 1968

You question the intent of Kerr-McGee to furnish a comprehensive engineering report concerning its plans to control pollution. You correctly state that the filing of such a report and the approval thereof by your Board is requisite to the issuance of any permit to discharge sewage, industrial or other wastes into the waters of the State. See Ga. Laws 1964, pp. 416, 427 (Ga. Code Ann. 17-510).
Should the lease now under consideration be granted by the

496
Mineral Leasing Commission, it can in no way constitute a license to mine in contravention of existing or future State laws. That the lessee in its operations would conform to rules and regulations, lawfully promulgated, of both the State Water Quality Control Board and the Surface Mined Land Use Board, was made an express provision of the form of lease discussed herein.
The function of the Mineral Leasing Commission, in my judgment, would only be to determine the advisability of accepting or rejecting the Kerr- McGee bid, although the Commission would certainly have the power and obligation to enforce the lease as executed.
However, the enforcement powers of the Commission do not pre-empt or preclude concurrent jurisdiction by other State agencies. You understand, of course, that this writer can in no way speak for Kerr- McGee, but I would certainly anticipate that they would furnish your office with any information relevant to the grant of a permit under the Georgia Water Quality Control Act.
All matters pertaining to actual or potential water pollution, whether or not prescribed in the lease, are within the primary jurisdiction of your Board, just as the mining operation itself, along with planned reclamation, is a concern within the particular purview of the Surface Mined Land Use Board.

OPINION 68-345 (Unofficial)

August 15, 1968

In your letter you state that your client has a number of motor vehicles which have been stored on its lot for two years. In selling these vehicles for storage you ask what procedure to follow in so far as the Motor Vehicle Certificate of Title Act is concerned.

The Motor Vehicle Certificate of Title Act does not set out a procedure for foreclosing liens on motor \:'ehicles. This is controlled by general statutes dealing with liens. I call, however, to your attention Subparagraph (c) of Section 32 of the Motor Vehicle Certificate of Title Act (Ga. Code Ann. 68-433a(c)). This statute requires an operator of a place of business for garaging, repairing or storing vehicles for the public to report to

497
the State Revenue Commissioner all vehicles which remain unclaimed for a period of thirty days. An unclaimed vehicle is defined as a vehicle left by an owner whose name and address is unknown to the operator. Failure to give notice will forfeit all claims and liens for its garaging, parking or storing.
Section 17 of the Act (Ga. Code Ann. 68-417a) sets out the procedure to obtain a certificate of title on vehicles acquired by means other than a voluntary transfer. However, a new certificate of title free and clear of all liens can be issued only if there are no outstanding liens against the vehicle or if the lien for storage costs is a first lien against the vehicle and its foreclosure would effectively discharge all other existing liens on the vehicle.
If any of these stored vehicles are in a wrecked condition at the time of sale there must be a compliance with Section 20 of the Act (Ga. Code Ann. 68-420a) which deals with wrecked or scrapped vehicles. The outstanding title, if available, and the manufacturer's serial plate must be turned in to the Revenue Commissioner and a new title and serial plate will be issued in accordance with regulations adopted by the Revenue Commissioner under this Act, Department of Revenue Rules, Chapter 560 10 13.
Concerning the sale of these vehicles I refer you to an Act of the 1968 session of the General Assembly, (Ga. Laws 1968, p. 197), which deals with the disposal of motor vehicles by automobile wrecking companies. Perhaps this new Act will be useful to you.

OPINION 68-346 (Unofficial)

August 15, 1968

This responds to your letter requesting an opinion as to whether your becoming a candidate for election to an office under the Constitution of Georgia would suspend pursuant to Ga. Code Ann. 24-2904a your status and benefits as Solicitor General Emeritus or, instead, would cause a forfeiture pursuant to Ga. Code Ann. 78-1205 of such status and benefits. If the latter section is applicable to the office of Solicitor General Emeritus, you ask whether or not the last paragraph of Ga. Code Ann. 78-1201 would exempt you from the forfeiture if the office you seek is Judge of the Superior Courts.

498
Opinion 68-199 is addressed to the question of whether a suspension or a forfeiture of one's status as Judge of the Superior Courts Emeritus would result from his offering as a candidate for the office of Judge of the Court of Appeals of Georgia. Your questions are almost identical. An additional case citation, not stated therein, which would support an argument in favor of suspension rather than forfeiture is McLendon v. Everett, 205 Ga. 713 (1949), which holds that since the right of a citizen to hold office is the general rule and ineligibility the exception, a citizen may not be deprived of such right except by some disqualification specifically declared by the Constitution or statutory law.
I regret that I am of the opinion that the question of suspension versus forfeiture is not as susceptible of a clear-cut answer with reference to the office of Solicitor General Emeritus as it was with reference to the office of Judge of the Superior Courts Emeritus. Similar arguments may be made against the applicability of Ga. Code Ann. 78-1206 to either emeritus office during the years 1962 and 1963. But, irrespective of whether or not that section once was applicable to Judges of the Superior Courts Emeritus, it is clear to me that since the 1964 amendment to Ga. Code Ann. 78-1201 (Ga. Laws 1964, pp. 683, 684), it has not been applicable to such judges.
The 1964 amendment makes no reference to Solicitors General or Solicitors General Emeritus. Hence, it offers no support for your position unless its reference to "any judge of the superior court" fairly can be construed to mean the office sought as well as the office held. I do not believe, however, that such construction is permissible. The 1964 amendment must, in my opinion, be limited to persons holding the offices of Judge or Judge Emeritus of the Superior Courts.
It thus appears to me that your argument against forfeiture must be directed against the 1962 Act alone. Ga. Laws 1962, p. 602, 603, Ga. Code Ann. 78-1206. If the courts were to read that Act technically and literally, they would apply it to the office of Solicitor General Emeritus. If, however, the courts were to apply the rules of construction mentioned above, they would find this forfeiture inapplicable to such office. Although I would prefer to make the argument against forfeiture, I am not able to predict whether the courts would sustain my position. Previous opinions on these Acts provide no clear answer. Op. Atty. Gen. 1963-65,

499
pp. 437, 439. Therefore, my advice must be that a solicitor general emeritus who offers for election to the office of judge of the superior courts must face a grave risk that he will forfeit his status and benefits as an emeritus officer.
Let me state again, as I have before, that the person who is advised that no certain advice is possible often is better advised than he who is told that the uncertain really is certain.

OPINION 68-347 (Unofficial)

August 15, 1968

Your questions are as follows:

(1) Is there any requirement of Georgia Law that prime contractors of sub-contractors post payment bonds?

(2) What type of notice is needed for a material supplier or laborer to make a claim for amounts remaining unpaid?

It is assumed that both of these questions relate to contracts entered by the State Highway Department of Georgia for construction of roads or highways within this State. Also, you request to be furnished any reprint of the Laws which may exist.

In answer to your first question, may I call your attention to the provisions of Ga. Code Ann. 23-1705. This provision requires two (2) types of bonds to be given by a contractor who has contracted for public work with a state, county or municipal corporation. First, a performance bond is required, and second, a payment bond is required for the protection of all sub-contractors or all persons supplying materials, labor, machinery and equipment in the prosecution of the work provided for in the contract.
In answer to your second question, of course, as you are aware, the lien laws of this State are not applicable to property owned by the State of Georgia, and therefore, the State is not responsible to a sub-contractor or laborer to insure payment to them, and neither is the State's property subject to a lien by either a subcontractor or laborer. However, the provisions of the law requiring the payment bond which has been previously quoted to you provides some protection to contractors and laborers, and Ga. Code Ann. 23-1708 provides a method in which the

500
obligee of the payment bond may bring suit under the terms of the bond.
For your benefit and information, I am enclosing a xeroxed copy of Ga. Code Ann. 23-1705 to 23-1709, which provisions would seem to answer both of your inquiries.

OPINION 68-348

August 15, 1968

This is in response to your letter requesting my official opinion as to whether or not a county board of education legally may pay the tax collector of the same county for the preparation of the county school tax digest.

My answer must be in the negative, assuming that there. is no constitutional law of local application which specifically authorizes such a practice in the county in question.

According to laws of general applicability, one of the specific duties of county boards of education is:

"... preparing tax digests and furnishing same to the tax collector of the county. . . ." Ga. Code Ann. 32-140 l.
I am of the opinion that the appellate courts of this State would view the obligation to prepare and furnish such digest as one which involves the exercise of judgment and discretion and hence, not subject to being delegated by the county board of education to the Tax Commissioner. Levine v. Perry, 204 Ga. 323 (1948). Further, I am of the opinion that, absent valid local law to the contrary, county boards of education are not authorized to make to county tax collectors, and county tax collectors are not authorized to receive from county boards of education, payments for the preparation of such digests since there is no general provision of Ia w which clearly authorizes same. Freeney v. Geoghegan, 177 Ga. 142 (1933).

OPINION 68-349 (Unofficial)

August 16, 1968

According to the facts furnished in your letter, which I shall assume to be entirely correct, you are entitled to six years' legislative service credit, were appointed to the office of Judge of

501
the Superior Courts on January 9, 1958, have served continuously since that date, are running unopposed for a new term ending January 1, 1973, and you will be sixty years of age on August 28, 1972.
If you do not elect the benefits provided by Ga. Laws 1968, p. 275, I am of the opinion that you are eligible for appointment as Judge Emeritus when you are in at least your 19th year of service as Judge of the Superior Courts, irrespective of your age at that time. Ga. Code Ann. 24-2602a. To the best of my knowledge, the courts never have adjudicated the question of the minimum time a judge must serve in his nineteenth year, but it would appear to me that service for a day or two should be sufficient to obviate all questions of sufficiency. In accord: Op. Atty. Gen. 1957, p. 78 and Official Opinion 68-53. Therefore, should you elect to retire on January 9, 1970 or, better yet, on January 10, 1970, I would be of the opinion that your rights to benefits (assuming you otherwise meet all requirements of the Act) would be beyond question.
If you elect the benefits of Ga. Laws 1968, p. 275, you would not be eligible for appointment as Judge Emeritus until you are at least sixty years of age. However, since you will attain age sixty on August 28, 1972 and your new term will not expire until January 1, 1973, it would appear that this deferment of eligibility provision of the 1968 Act would cause you no hardship.
I regret to inform you, however, that I am of the opinion that the 1968 amendment does not provide clear-cut answers to several questions which can arise in its application. I am enclosing herein copies of Opinions 68-331 and 68-338 which discuss some of these problems.

OPINION 68-350

August 16, 1968

This responds to your letter requesting my opinion as to the proper disposition of the "appeals" of eighty-one (81) Manor, Georgia, students from the July 10, 1968 action of the State Board of Education denying pursuant to Ga. Code Ann. 32-650 and Rules and Regulations, State of Georgia, 160-1-.13, their applications allegedly filed pursuant thereto.

502
I am of the opinion that the decision of the State Board of Education on those applications was
". . . entirely discretionary with the State Board and shall, in the absence of a clear abuse of discretion by the board, be final and conclusive." Ga. Code Ann. 32-650.
Under these facts and the applicable law, I am of the opinion that the Board is without authority to consider these appeals, Murdock v. Perkins, 219 Ga. 756 (3) (1964), and suggest that you return the "appeal" papers to the attorney for the students.

OPINION 68-351

August 16, 1968

This responds to your letter requesting my opinion as to the best procedure for the disposition of a check payable to a retired teacher who died on July 3, 1968 after her benefits had accrued on July 1, 1968. According to the information furnished, this teacher has no estate and is survived by four children who are in their majority.

I am of the opinion that Ga. Code Ann. 49-901,49-902 and 66-103 relating, respectively, to minors, incompetents and payment of wages are not applicable to the facts of this case. One solution might be to take from the four adult heirs an affidavit of inheritance and deliver the check to them pursuant thereto. However, the best procedure from the standpoint of protecting the Retirement System would be to hold the check until these heirs have obtained a judgment of "No Administration Necessary" pursuant to Ga. Code Ann. 113-1232, et seq.

OPINION 68-352

August 19, 1968

This is in reply to your letter of August 13, 1968, asking for my official opinion as to what convictions for criminal offenses will result in civil disabilities to the elective franchise of the offender.

In Georgia, no person shall be entitled to register, vote or hold any appointment of honor or trust if he shall have been convicted of:

a. Embezzlement of public funds; or

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b. Malfeasance in office; or c. Bribery; or d. Larceny; or e. A crime involving moral turpitude punishable by the laws of this State with imprisonment in the penitentiary unless pardoned. Georgia Constitution Art. I I, Sec. II, Par. I (Ga. Code Ann. 2-801 ).
The first four grounds for disenfranchisment listed above are, of course, specific crimes which need no further definition. Crimes involving "moral turpitude" on the other hand are by their very nature incapable of definition because the term "moral turpitude" is one which is adaptive to the state of public morals and common sense prevailing in the community at any given time. In re Pearce, 103 Utah 522, 136 P.2d 969, 971. The standard is public sentiment and it changes as the moral opinions of the public change. Indeed a crime may involve moral turpitude when measured by the standards of one community but not so in another. 21 Am. Jur. 2d, Criminal Law, 24. In Georgia, it has been held that, "'moral turpitude' in its ordinary sense involves the idea of an inherent baseness or vileness; shameful wickedness; depravity; in its legal sense it includes everything done contrary to justice, honesty, modesty or good morals." Huff v. Anderson, 212 Ga. 32 (1955).
"It has been held that any intentional violation of a statute may involve moral turpitude if the statute expresses a moral judgment against the conduct prohibited. And it has also been suggested that the fact that the act is penalized, and the character of the punishment for it, are circumstances to be considered in determining its turpitude." 21 Am. Jur. 2d, Criminal Law, 24. Moreover, an act need not be done with malice or deliberation to constitute moral turpitude in Georgia as long as it is done intentionally contrary to the good morals of the community. Hughes v. State Board of Medical Examiners, 162 Ga. 255 (1926).
Accordingly, I believe that any crime constituting an intentional violation of a statute expressing the moral judgment of the community against the prohibited conduct would involve moral turpitude. However, before conviction of such crime could operate to disenfranchise a person, such crime must be punishable by imprisonment in the penitentiary. For this purpose,

504
"penitentiary" means any place where felony prisoners exclusively are confined at hard labor under the authority of any law of this State. Ga. Laws 1957, pp. 477, 482.

OPINION 68-353 (Unofficial)

August 19, 1968

The Georgia statute dealing with the registration of lotteries and games of chance including gift enterprises is found in Ga. Code Ann. 26-6501 which provides:

"Sale, etc., of lottery tickets.-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, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor."

The provisions have been construed by the Georgia Courts and you might like to examine the recent case of Boyd v. Piggly Wiggly Southern, Inc., 115 Ga. App. 628, 155 S.E.2d 630 (1967).

OPINION 68-354

August 20, 1968

This is in response to your letter of July 10, 1968, requesting my official opinion on the following questions:

l. Whether Section 5B of the Act governing the Georgia Firemen's Pension Fund as amended by Ga. Laws 1968, pp. 441, 444, is applicable to firemen who presently are memhers ofthe Fund.
2. The method by which interest should be calculated on contributions made pursuant to said Section 5B of the amended Act.

I am of the opinion that Section 5B as amended is applicable only to those persons who "now desire to become a member of the system," Ga. Laws 1968, pp. 441, 444, and is not applicable

505
to pt:rso,ts who already are members of the Fund. As the Supreme Court of Georgia has said in an analogous situation,
". . . neither the fireman, nor those claiming under him, have any rights [to pension benefits] except those conferred by the statutes . . . governing the pension funds." Burks v. Board of Trustees, 214 Ga. 251,254 (1958).
I am of the opinion that in those instances where a person applies for membership pursuant to the provisions of Section 5 B as amended, his required contribution must be accompanied by a payment of
". . . simple interest thereon at the rate of six (6) per cent per annum, as shown by a prepared table furnished by the fund." Ga. Laws 1968, pp. 441,445.
I do not construe Section 5 B as requiring payment of a contribution for those periods during which a person was not employed in a position which would have rendered him eligible for membership in the Fund. In accord: Op. Atty. Gen. 1958-59, p. 237.

OPINION 68-355 (Unofficial)

August 21, 1968

This is in reply to your request asking my unofficial opinion regarding the following questions:

"Under the new Election Code, do the County School Board Members qualify with the Democratic Executive Committee to run in the General Primary or can they qualify with the Ordinary at least forty-five days before the General Election, Code No. 34-1001?
"Will anyone qualifying after the closing date of the Primary, July 22, 1968, have to obtain a petition of five percent of the voters in the County to get on the General Election Ballot?"
Ga. Code Ann. 34-1001 (b) requires each candidate for county office to file his Notice of Candidacy with the Ordinary regardless of whether or not he or she has previously qualified with a political party. Said Code Section provides different time limits within which a candidate may qualify. These are as follows:

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a. At least 60 days before a general election for any candidate required to accompany his Notice of Candidacy with a nomination petition; or
b. At least 60 days before a general election for any candidate nominated by convention of a political party but not including substitute nomination by convention; or
c. Within 5 days of being nominated by a party in a runoff primary; or
d. At least 45 days before a general election for all other candidates not falling within all of the foregoing categories; or
e. At least 15 days before a special election for all candidates therein not falling within any of the above-listed enumerations.
Accordingly, a candidate for the county school board will have to qualify in your office at least forty-five days before the forthcoming general election unless he falls within categories (a), (b), and (c) above, in which case the time limits therein expressed will govern.
Turning now to your second question, Ga. Code Ann. 341001 (c) provides as follows:
"(c) Each of such candidates shall accompany his notice of candidacy with a nomination petition in the form hereafter prescribed; except that such petition shall not be required if such candidate is: (i) 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 of the United States; (ii) a nominee of a political party nominated in a primary held by such party; (iii) the nominee of a political party for a public office when the prior nominee of such party for such office shall have received at least ten per cent of the total votes cast for candidates seeking such office in the last election held to fill same; (iv) seeking office in a special election; (v) seeking, in a general election, a county or militia district office or membership in the House of Representatives of the General Assembly in a county where no political party has or will hold a primary for the nomination of any candidate for any

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.. u~ll vffice to be filled in such general election; or (vi) an incum bent qualifying as a candidate to succeed himself if, prior to the election at which he was originally elected to the office for which he seeks re-election, such incumbent accompanied his notice of candidacy with a nomination petition ."
The clear import of this Code section is to require any candidate not falling within one of the six enumerated exceptions to accompany his notice of candidacy with a nomination petition. Accordingly, if a candidate for the county school board has not qualified with his party to run in the primary, and if he does not fall within any of the other enumerated exceptions, he will be required to accompany his notice with a nomination petition in the form prescribed by Ga. Code Ann. 34-1010.

OPINION 68-356

August 21, 1968

This is in response to your request for my opinion as to whether or not Justices of the Peace and Constables seeking offices as write-in candidates, file notices of intention of candidacy under Art. II, Sec. VII, Par. I, of the Constitution as amended in 1966, with me or with the Ordinaries.

As you know, Justices of the Peace and Constables have been held by the Courts to be State officers, not county officers. Long v. State, 127 Ga. 285, 286, 287; Rose v. State, 102 Ga. 697; McBrien v. Starkweather, 43 Ga. App. 818. See also Op. Atty. Gen. 1939-41, p. 41; 1941-43, p. 25; 1948-49, pp. 472-473; 195253, p. 85.

Ga. Code Ann. 34-1001 (b), which relates to the filing of notices of candidacies by persons whose names are to be placed on the ballots, recognized that Justices of the Peace and Constables are State offices when it provided that candidates for State offices file their notices with the Secretary of State except that Justices and Constables file with the Ordinary of their respective counties.

The 1966 amendment to the Constitution adding Art. I I, Sec. VII, Par. I (Ga. Code Ann. 2-1201a) (Ga. Laws 1965, p. 165) did not contain an exception as to Justices of the Peace and Constables. It provides in effect that write-in candidates seeking

508
election in a State general election must, in order to be eligible to take office, file notice of intention of candidacy with the Secretary of State and by publication in a paper of general circulation in the State, whereas write-in candidates seeking election in a general election of county officers file such notice with the Ordinary and by publication in the official organ of the county.
Elections of Justices and Constables have been held to be State elections. Long v. State and Rose v. State, supra.
In view of the clear state of the law, I am unable to say that the exception as to Justices and Constables appearing in Ga. Code Ann. 34-100l.(b) should be interpreted into the more recent constituional amendment. Hence it is my opinion that persons seeking election as write-in candidates for the offices of Justices of the Peace and Constables at the forthcoming November general election are required by the Constitution to file their notices with you as Secretary of State and comply with the state-wide pu blicatiori requirement.

OPINION 68-357 (Unofficial)

August2l, 1968

You have requested by opinion as to how sentences 87696, Count 2 and 87696, Counts 4, 6, 8 and 10 should be computed.
OPINION

It is my opinion that this inmate must serve a total of five years or five consecutive one-year sentences, the remaining five years suspended.

DISCUSSION

Sentence 87696, Count 2, directs that the defendant shall be confined for a period of two years, serving one year and the balance suspended. The sentence in Counts 4, 6, 8 and 10 reads as follows:

"The said defendant be confined at labor for the full term of not less than two (2) years on each count to be computed according to law. To serve one year, balance of sentence suspended on condition defendant not violate the laws of Georgia and until further order of the court. Each of the

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a ...0ve sentences to run consecutively with sentenct and case 87696, Count 2." (Emphasis added.)
The language employed by the sentencing judge in the two sentences shows that he intended Counts 4, 6, 8 and 10 to follow separately and consecutively the sentence of Count 2. It should be noted that the suspended portions of Counts 2, 4, 6, 8 and 10 would continue to run while the inmate is serving each successive count, resulting in a one year suspended sentence remaining after Count 10 is served.

OPINION 68-358 (Unofficial)

August 21, 1968

Your letter concerning the Georgia Detainer Act was referred to me to answer the following question which you have posed:

Under the 1968 Georgia Detainer Act (Act No. 1058) could the State Board of Corrections honor a detainer filed only with a warrant charging an inmate with an offense which is not accompanied by a copy of the pending indictment, accusation or information.

OPINION

The Georgia Detainer Act provides that a detainer may only be honored if accompanied by an indictment, accusation or information. Therefore, a warrant would not be sufficient to meet the provisions of the Act.

DISCUSSION

As you state in your letter, the Act provides that a detainer may only be honored if accompanied by a pending indictment, accusation or information. In order for a warrant to be acceptable for this purpose, it must have the same legal significance as an indictment, accusation or information.

An accusation is a "formal charge against a person, to the effect that he is guilty of a punishable offense, laid before a court or magistrate having jurisdiction to inquire into the alleged crime." Black's Law Dictionary, (Fourth Ed. 1951), p. 38; Coplon v. State, 15 Ala. App. 331, 73 So. 225, 228. In Sutton v. State, 54 Ga. App. 349, 188 S.E. 60, 62 (1936), the Georgia Court

510
held that an "accusation" is equivalent to an "information" at common law which is a mere allegation of a prosecuting officer by whom it is preferred. Under Ga. Code Ann. 27-704 a defendant may be tried under an information or accusation in all misdemeanor and felony cases other than capital felonies in the superior courts of this State if there has been a waiver of indictment.
An indictment is an accusation in writing found and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that a person therein named has done so me act, or been guilty of some omission, which, by law is a public offense, punishable on indictment. Kennedy v. State, 86 Tex. Cr. R. 450,216 S.W. 1086; State v. Engler, 217 Iowa 138, 251 N.W.88.
A warrant, on the other hand, is a written order directing the arrest of a person or persons, issued by a court, body or official, having authority to issue warrants. Restatement, Torts, 113. A warrant is for the purpose of apprehending and bringing before the court a person charged with the commission of a crime. People v. Baxter, 32 N. Y.S.2d 325, 327; Black's Law Dictionary (Fourth Ed. 1951) p. 1756. The writer is cognizant that in the case of Cox v. Dorsey, 152 Ga. 532, 110 S.E. 236, (1921), the Supreme Court of Georgia held that the term "accusation" in recognizance for appearance to answer an accusation is broad enough to include "warrants." However, this equation would not work in the con verse, i.e., that warrants are the same as an accusation, because an accusation on its face would give probable cause for an officer to make an arrest of the person accused under such an instrument.
It will be noted that the authority cited in this opinion is primarily from other jurisdictions. There has been some Georgia law on this subject, but it has consisted of a determination as to the adequacy or necessity of these instruments, rather than defining their purpose. Examples of these cases may be found under the following topics: (1) WARRANT: Froman v. Woodmen of the World Life Ins. Co., 200 Ga. 1, 36 S.E.2d 81 (1945); Radney v. Levine, 75 Ga. App. 137, 42 S.E.2d 644 (1947); Cason v. State, 134 Ga. 786, 68 S.E. 554, 555 (1910); Toller v. Hewitt, 12 Ga. App. 496, 77 S.E. 650 (1913); and Denson v. Battle Bros., 17 Ga. App. 575, 87 S.E. 842 (1916). (2) INDICTMENT: Moore v. United States, [C.C.A. Ga.], 128 F.2d

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974, 975 (5th Cir., 1942); Goldsmith v. State, 2 Ga. App. 283, 58 S. E. 486 (1907); Progress Club v. State, 12 Ga. App. 174, 76 S.E. 1029, 1030 (1913) and Flint v. State, 12 Ga. App. 169, 76 S.E. 1032, 1033 (1913). (3) ACCUSATION: Gordon v. State, 102 Ga. 673, 679, 29 S.E. 444, 446 (1897); Wright v. Davis, 120 Ga. 670, 48 S.E. 170 (1904); Cleveland v. Brown, 141 Ga. 829, 82 S.E. 243 (1914) and Gilbert v. State, 17 Ga. App. 143, 86 S.E. 415, 416 (1915). (4) INFORMATION: Sutton v. State, 54 Ga. App. 349, 188 S.E. 60, 62 (1936) and Goldsmith v. State, supra. The Georgia decisions are generally in support of the definitions contained in this opinion, although none of these decisions embody such a definition.
Therefore, it is clear that a warrant's function is to provide an arresting officer with the authority to make an arrest of a person suspected of having committed a crime. A warrant is not an accusatory instrument but merely one in which the issuing authority has found probable cause that an individual should be taken into custody pending determination of whether that individual should stand trial, based upon an indictment, accusation or information.
You expressed concern in your letter that there may be considerable time delay before an indictment could be secured in some counties because the grand jury is in session only once or twice a year. This possible problem could be alleviated by one of the two following alternative measures: (1) the solicitor general of the circuit involved could prepare an accusation or information and file it with the detainer or (2) the solicitor could determine from the prison authorities where the inmate is held, when he is to be released, and upon such release have an arresting officer from his jurisdiction take the inmate into custody under a warrant for his arrest.

OPINION 68-359

August 21, 1968

This responds to your letter and its enclosure, a letter to Dr. Allen C. Smith, Deputy State Superinendent of Schools, from the Hartford Insurance Group. Apparently, a representative of that insurance company disagrees with that portion of Opinion 68-266 which questioned the wording of the condition of the form which

512
they utilize to bond school principals as required by Ga. Code Ann. 32-820.
Although the insurance representative states that his company could not escape liability under that bond form, I must reiterate my opinion that
"... caution would dictate that bonds for public school principals be expressly conditioned as required . . . [by Ga. Code Ann. 32-820]."
I am unable to assure you that a bond not expressly conditioned as required by law would be enforced as a statutory bond. See: Campbell v. Benton, 217 Ga. 368, 371 (1961 ); Citizens Bank v. American Surety Co., 174 Ga. 852 (1932); Conner v. Resolute Insurance Co., 112 Ga. App. 883 (1966); Talmadge v. General Casualty Co., 88 Ga. App. 234 (1) (1953); Collins v. United States Fidelity & Guaranty Co., 72 Ga. App. 875, 879-880 (1945).
I suggest that the words "perform the duties of his office as required by Law, pursuant to Section 89-4, Georgia Codes," as they appear in this insurance company's schedule bond, be stricken and the following language inserted in lieu thereof:
" ... and truly account for all public and other funds and all property coming into such principal's custody, control, care or possession, pursuant to Ga. Laws 1959, p. 159, Ga. Code Ann. 32-820.... "
The word "faithfully" should not be stricken and should remain immediately preceding those words.
This change of wording would cause the bond form to be expressly conditioned as required by statute and should be acceptable to the insurance company representative, who states in the above-mentioned letter:
"We have no objection to executing a bond form tailored specifically from the statutes covering Georgia school principals. . . ."

OPINION 68-360 (Unofficial)

513 August 22, 1968

This is in response to your letter in which you posed three questions:
(I) First Federal Savings & Loan Association of Dublin is presently foreclosing a Deed to Secure Debt on real estate. If First Federal acquires title to this property at the foreclosure sale and makes a deed to itself under power of sale, is First Federal required tp pay the transfer tax on such deed?
(2) If, at foreclosure sale referred to above, a third party whom we shall refer to as John Doe, is the highest bidder at sale, and First Federal conveys the property to John Doe by a deed under power of sale, as attorney-in-fact for the borrower, is First Federal required to pay the transfer tax?
(3) In cases where First Federal forecloses and acquires title at the foreclosure sale, and subsequently sells the real estate to someone else, and finances part of the purchase price with a long-term loan, is First Federal required to pay the transfer tax and, if so, would it be paid on the gross amount of the sale or on the sale price minus the loan?
In advising you on these questions it will first be necessary to discuss the nature of the Real Estate Transfer Tax and the taxation of the federal government, its agencies and instrumentalities.
The Real Estate Transfer Tax is not a property tax but is an excise tax imposed on the privilege of selling real estate.
The United States Government and all of its agencies and instrumentalities are immune from state taxation unless Congress consents to such taxation. See Opinion 68-306. To date, national banks are still instrumentalities of the United States government. The only taxation by state governments of national banks is set out in U.S.C.A. 548. An excise tax on the transfer of real estate is not one of the methods of taxation authorized. Therefore, the State of Georgia cannot levy its Real Estate Transfer Tax on any transaction where a national bank is a party to the transfer.
Recently the Supreme Court of Georgia in .interpreting and

514
applying the provisions of Ga. Laws, 1952, p. 46, and Ga. Laws 1953, pp. 379, 389, held that " . . .state banks, state building and loan associations and federal savings and loan associations having their principal offices or places of business in this state 'shall have the same immunities and exemptions as national banks' located in this state." Atlanta Federal Savings & Loan Association v. Simmons, 224 Ga. 483, 162 S.E.2d 342 (1968).
Therefore, as the federal savings and loan association is a party to the transaction in questions number one and three the transfer would not be subject to the Real Estate Transfer Tax, however, since the federal savings and loan association is not a party to the transfer but is merely an agent for the "borrower" in question number two the transaction would be subject to the Real Estate Transfer Tax.

OPINION 68-361 (Unofficial)

August 22, 1968

You have requested an unofficial opinion on the following matters:

I. Are multi-county planning commissions created by resolutions and ordinances of the participating counties and cities under authority of Ga. Code Ann. 69-1201, "employers" as defined in Ga. Code Ann. 114-101 for workmen's compensation purposes?

2. If not, do such commissions have authority to elect to come within the workmen's compensation act of Georgia?

3. Do such commissions enjoy governmental immunity in tort actions arising from the negligence of their employees?

4. If so, are such commissions permitted by law to obtain liability insurance coverage on their vehicles and waive their governmental immunity to the extent of such coverage?

First, the part of the workmen's compensation law relevant to your question defines "employer" to include the State of Georgia and all departments thereof, each county within the State, any municipal corporation within the State and any political division thereof. Ga. Code Ann. 114-101 as amended by Ga. Laws 1968, pp. 1163-1166. Although I have found no case deciding whether

515
a multi-county planning comission is an employer, the case of Richmond County & C. Authority v. McLain, 112 Ga. App. 209 (1965 ), determined that a hospital authority was not an employer within the terms of the workmen's compensation act. Of particular importance to your question is the following rule as laid down by the Georgia Court of Appeals:
"The general rule is that an authority, which is an agency of one or more participating governmental units created by statute for the specific purpose of having delegated to it certain functions governmental in character, is not a political subdivision unless recited to be so in the pertinent constitutional or statutory instruments creating it." Id. at page 210.
I have reviewed Ga. Code Ann. Ch. 69-12 which authorizes the various municipal units to create planning commissions and nowhere does this Chapter provide that the commission shall be a political subdivision of the creating authorities. Since the participating units have delegated to the commission functions which are governmental in character [see Ga. Code Ann. 691203, 69-1204], the same reasoning would apply as in the Richmond County case and it would therefore be my unofficial opinion that the planning commission is not an employer under the workmen's compensation act.
In response to your second question, I find that private firms or corporations employing less than ten (10) employees may elect to come within the workmen's compensation act. Ga. Code Ann. 114-107. However, I have been unable to find any similar provision for an organization such as a planning commission.
Since I have determined that the planning commission is not a political subdivision or agency of the State, it follows that the commission does not enjoy governmental immunity in tort actions arising from the negligence of its employees. Since it is my unofficial opinion that these commissions do not enjoy immunity, it is not necessary to answer your fourth question.

OPINION 68-362

August 23, 1968

A question has been presented to me which makes it appropriate for me to issue an opinion concerning the authority

516
of an assistant solicitor to file a valid detainer under the new Georgia Detainer Act, House Bill 1237, Act No. 1058.
OPINION
An assistant solicitor general is authorized by law to act in the capacity of the solicitor general under whom he works. Therefore, it is my opinion that an assistant solicitor general may file a detainer under this Act.
DISCUSSION
An assistant solicitor general in Georgia has the same powers as a solicitor general. An example of such authority is found in Ga. Laws 1962, pp. 673, 674 which contains the following language:
"The assistant solicitor general shall have such authority as given to solicitors general by the laws of this State that such authority may be delegated to him by the solicitor general under whom he holds his appointment, and when acting on behalf of the solicitor general, he shall have all the authority and power, as well as the duties of the solicitor general in the courts of the counties comprising such judicial circuit."
This provision as well as all other statutes dealing with assistant solicitors general are found in "population" statutes that are of local application. They have the effect of being a local law. Each of these statutes contains a provision similar to the one quoted above. They may be found in Ga. Laws 1953, pp. 2476, 2478; 1956, pp. 2615, 2616; 1957, pp. 3230, 3232; 1961, pp. 214, 215; and 1963, pp. 3549, 3550. The language of this law is clear in granting an assistant solicitor general the same powers as his solicitor general if such powers have been delegated by the solicitor general.
For your further information, I call your attention to Ga. Code Ann. 24-2913, which provides for the appointment of a "solicitor general pro tern." A solicitor general pro tern is an attorney appointed to act as solicitor general in a circuit where the elected solicitor is laboring under some incapacity which prevents him from performing his duties. He would possess all of the powers of a duly elected solicitor general and would be entitled to file a valid detainer under this Act.

517

OPINION 68-363 (Unofficial)

August 23, 1968

This responds to your letter requesting an unofficial opinion on whether your contribution to the Trial Judges and Solicitors Retirement Fund, Ga. Laws 1968, p. 259, should be based alone upon your salary as Judge of the City Court of Carrollton or also should be based upon your salary as Judge of the Juvenile Court of Carroll County.
For purposes of answering your, question as to contributions, I shall assume that you already have determined whether, as Judge of the City Court of Carrollton, you must or may become a member of this Fund and, if appropriate, that you have made or will make the necessary election. See in this respect Ga. Laws 1968, p. 259, Sees. 8(a), 8(d), 17, and especially Sec. 2(b), quoted below, with respect to courts created or operated under city charters. Therefore, I have not reviewed the Acts under which your City Court was created and is operated and this opinion should not be construed as expressing any view thereof.
The basis for employer and employee contributions to this Fund with respect to judges of "inferior courts" shall be
" . . . the actual compensation received as judge . . . of an inferior court. . . . " Ga. Laws 1968, p. 259, 12.
The term "inferior courts" is defined, for purposes of the Act governing the Fund as:
" . . . courts which have certain concurrent jurisdiction with the superior courts and which are empowered to conduct trials by jury and try State offense~ and which have presiding judges and solicitors, but said term shall not include civil and criminal courts of Fulton County, courts of ordinary, justice courts, police courts, mayors' courts, municipal courts, small claims courts, and any courts, by whatever name called, which were created by or are operated under the provisions of city charters." Ga. Laws 1968, p. 259, 2(b).
Although county juvenile courts are not specifically mentioned among those courts whose judges are not covered by the Fund, it would appear to me that such courts do not fit the first part of the definition, Ga. Code Ann. Ch. 24-24, and, hence, your

518
contributions to the Fund should not be based upon your salary as Judge of the Juvenile Court of Carroll County. Ga. Laws 1968, p. 267, 12.
OPINION 68-364 August 23, 1968
You request my official opinion as to whether a single mining company engaged in mining operations at several widely dispersed locations must submit mote than one Surface Mined Land Use Plan and obtain a separate license for each mining site.
OPINION
It is my official opinion that mining companies or individual operators so engaged in surface mining at widely dispersed locations must submit more than one Surface Mined Land Use Plan and must obtain a separate license for each location.
DISCUSSION
The license required of operators of surface mines by Ga. Laws 1968, pp. 9-19, is not a mere receipt for taxes paid since licensing thereunder contemplates compliance by the operator with conditions imposed by such license and its accompanying use plan. The license is instead a right granted by competent authority to do an act which would otherwise be illegal and punishable as a misdemeanor. Ga. Laws 1968, pp. 9, 18. See generally Home Insurance v. Augusta, 50 Ga. 530 (1874) aff'd. 93 U.S. 116, 23 L.Ed. 825 (1876).
A license fee exacted pursuant to the provisions of the Georgia Surface Mining Act of 1968, supra, is clearly intended to help defray the cost of regulation of surface mining and is in no way intended to augment the general revenues of the State. Such being the case, it would logically appear that inspection and supervision by the State of two mine sites at widely scattered locations would entail greater cost than if these mines were so contiguous as to constitute, for practical purposes, a single operation. Therefore, to my way of thinking, the increased administrative costs involved with regulation of a multi-county operator would recommend separate licenses for each mine.
Since a Surface Mined Land Use Plan is to accompany the application for license, it follows that a different plan is likewise

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required for each location. This would seem necessary in any case, for local ordinances, topography, and adjacent land use characteristics undoubtedly demand variations in both reclamation procedures and mining methodology.
The foregoing opinion should not be construed to limit the exercise of discretion by the Board in situations where the operations of a single company are so identical in nature and so proximate as to warrant their reasonable classification as a single mine.

OPINION 68-365 (Unofficial)

August 26, 1968

You requested advice as to the legality of a school bond referendum passed by the voters of your county.
The necessary or pertinent steps to the issuing of school bonds by a county board of education are found in Ga. Code Ann. Title 32, Chapters 9 and 14; Title 2, Chapter 6; Title 87, Chapters 2 and 3.
The only information supplied this office pertaining to the above steps was a copy of "A RESOLUTION TO REGULATE AND PROVIDE FOR THE CALLING OF AN ELECTION TO DETERMINE THE ISSUANCE OR NON-ISSUANCE OF $420,000 JEFFERSON COUNTY SCHOOL DISTRICT BONDS: TO PROVIDE FOR THE DATE AND RATE OR RATES OF INTEREST SAID BONDS SHALL BEAR AND THE MATURITIES OF SAID BONDS: TO PROVIQE FOR THE LEVY AND COLLECTION OF TAXES TO SERVICE SAID BONDED INDEBTEDNESS, IF SO AUTHORIZED, AND FOR OTHER PURPOSES." This Resolution seems in order.
However, if you believe that any of the other necessary or pertinent steps have not been properly carried out, you should advise your county attorney so that he can take the necessary action.

520

OPINION 68-366

August 26, 1968

You have asked for my official opinion on eight (8) questions which arise from the following factual situation:

During the 1966 Session of the General Assembly, a Senate Resolution (Ga. Laws 1966, p. 1092-1100) was adopted proposing a local amendment to Art. VIII, Sec. V, Par. I of the Constitution (Ga. Code Ann. 2-6801) for the purpose of creating the Polk School District by merging the county school system of Polk County and the independent school system of the City of Cedartown. During the same Session, a House Resolution (Ga. Laws 1966, p. 761-63) was adopted proposing a general amendment to Art. VIII, Sec. V of the Constitution, to be known as Par. II thereof (Ga. Code Ann. 2-6802), for the purpose of authorizing in part, changes in the term of office of county board of education members pursuant to special or local law, conditioned on referendum,

"Notwithstanding provisions contained in Article VIII, Section V, Paragraph I of this Constitution, or in any local amendment applicable to any county school district. " Ga. Laws 1966, p. 761.

Both amendments were ratified on November 8, 1966.

During the 1967 Session, a local law was passed providing:

"Notwithstanding the provisions of Article VIII, Section V, Paragraph I of the Constitution relating to the Polk School District to the contrary, those members of the board of education of the Polk School District elected at the special election to be held on March 15, 1967, from the Cedar LakeFite school attendance area and the Fish Creek-Antioch school attendance area, pursuant to said Constitutional provisions, shall serve until December 31, 1968, and until their successors are duly elected and qualified." Ga. Laws 1967, pp.2718,2119.

Further set forth in the 1967locallaw was:

" . . . the duty of the ordinary of Polk County to issue the call for an election for the purpose of submitting this Act to the voters of Polk County for approval or rejection. The ordinary shall set the date of such election to concur with the

521
date of the General Election in the year 1968." Ga. Laws 1967, p.2718,2719.
On March 15, 1967, an election was held approving the 1967 Act and thereafter, on April6, 1967, the Governor signed the Act into law. The Ordinary now realizes that the election was held at the wrong time and intends for it to be reheld on the date of the 1968 General Election.
Your eight (8) questions will be quoted and answered in turn.
"1. Is the Act of the Legislature changing the terms of the two members from Cedar Lake-Fite and Fish Creek-Antioch attendance areas (Ga. Laws 1967, p. 2718) valid and in full force at this time?"
This question should be answered in the affirmative. It is rather obvious that the 1967 Act was enacted pursuant to the 1966 general constitutional amendment and the question thus becomes one of whether that amendment will control over the 1966 special amendment. Several interesting and difficult legal questions could arise with reference to the proper interpretation of these amendments were it not for the fact that the will of the People is unmistakably clear that the general amendment shall control
"Notwithstanding provisions contained in ... any local constitutional amendment applicable to any county school district. . . . " Ga. Code Ann. 2-6802.
This will should prevail. Birdsey v. Wesleyan College, 211 Ga. 583 (1955), Cason v. State, 217 Ga. 339 (1961).
"2. Should the Ordinary of Polk County, Georgia rehold the referendum for the purpose of approving said Act on the date of the General Election this year or as provided in Section 2 thereof?"
This question also should be answered in the affirmative because
"[i]t is settled in this State and in many other jurisdictions of this country that an election is absolutely void when not held at the proper time. . . ." Davis v. Page, 217 Ga. 751, 752 (1962).
"3. As matters now stand, without repeating the

522
referendum, will the terms of the two members in question expire on December 3 1, 1968?"
This question demands a negative answer. Until a valid election has been held pursuant to Sec. 2 of Ga. Laws 1967, p. 2718,2719, at which the qualified voters approve the provisions of Sec. 1 of that Act, the terms of the present two board members will terminate according to the provisions of the 1966 special constitutional amendment, that is, on December 31, 1970.
"4. If it is determined that the referendum should be reheld on the date of the General Election, and if it is held accordingly and approved therein, would the terms of these two members expire on December 31, 1968?"
The answer should be in the affirmative, subject to the understanding that the reference is to the present two board members and not to the members which will be elected in the 1968 General Election. The reason is the same as stated in answer to questions I and 3.
"5. If it is determined that the referendum should be reheld on the date of the General Election, and if it is held accordingly and it is at that time rejected by the voters, will the term of those two members expire on December 31, 1968?"
The answer must be negative, based upon the same reasons given for the answer to question 3.
"6. If they do not run in the Democratic Primary, what would be necessary for them to be able to be on the ballot at the General Election?"
The answer to this question is provided by Ga. Code Ann. 34-1001 and 34-1010.
"7. If . . . [these two mem hers] are elected in the General Election and if the amendment changing the terms of their office was also approved by referendum at that same time, . . . would . . . the~r term . . . run for four years beginning January 1, 1969?"
This question deserves an affirmative answer, based upon the reasons stated above and upon Sec. 1 of the 1967 Act, which provides, in relevant part:

523
"Thereafter, successors to the initial members of said board of education from such districts shall be elected to the board in the general election which is conducted in that year in which each respective term of office expires, and they shall take office on the first day of January following their election and shall serve for a term of office of four years and until their successors are duly elected and qualified." Ga. Laws 1967, p. 2718, 2719.
"8. On the other hand, if the referendum is defeated and the terms not changed, ... how long [would] these two [present] members . . . continue in office?"
The question and answer appear identical to question 5, answered above.

OPINION 68-367 (Unofficial)

August 26, 1968

As you know "residence" under the Election Code is primarily the elector's state of mind regarding his intentions. Accordingly, it is impossible to make generalizations classifying electors' conduct as either establishing or disestablishing voting residence. Thus, a person leaving Ware County, intending to be gone indefinintely could lose his residence pursuant to Ga. Code Ann. 34-632(e). On the other hand, a person leaving the County temporarily for a specific purpose such as government service, could still be classified as an elector of Ware County even though he maintains no address in Ware County and remains away indefinitely. Ga. Code Ann. 34-632(j).

If you believe that persons have lost their voting residence in Ware County, you should challenge them pursuant to Ga. Code Ann. 34-627. At any hearing conducted pursuant to such challenge you may introduce any evidence of the challenged elector's conduct which would indicate an abandonment of Ware County as such elector's residence.

Finally, it is an established principle of law that all sections or parts of a statute or code should be construed together and harmonized wherever possible. Gillis v. Gillis, 96 Ga. 1 (1895). Accordingly, the fact that Ga. Code Ann. 34-1310 requires

524
persons to vote only in the election district in which they reside should be construed to mean residence in that election district which the elector departed and to which he intends to return.

OPINION 68-368

August 26, 1968

This responds to your request for my official opinion as to whether or not the Coosa Valley Area Vocational and Technical School has been established pursuant to law such that it would be legal for the State Board of Vocational Education to enter into a contract with respect to it.

Although Ga. Laws 1968, p. 3756, purporting to create the Coosa Valley Area Vocational Technical School System, may be vulnerable to attack on the ground that it was not advertised in compliance with the mandatory provisions of Art. I I I, Sec. VI I, Par. XV of the Constitution of Georgia, Ga. Code Ann. 21915, it does not follow that the school in question has not been properly established pursuant to law.
Art. VI I, Sec. VI, Par. I of the Constituion of Georgia has been specially amended as follows:
"In the event any ... [area] school beyond the twelfth grade is established by Floyd County alone, then the governing authority of Floyd County shall administer and control such school, or in lieu thereof a local act may be passed prescribing how any such school shall be administered and controlled, and the State is hereby authorized to contract with such governing authority relative to the expenditure of funds for such school." Ga. Laws 1964, p. 1063, 1065 (ratified Nov. 3, 1964).

I have been reliably informed that the Coosa Valley Area Vocational and Technical School has been established by Floyd County alone and that the governing authority of Floyd County is administering and controlling such school. Assuming this information to be correct, I am of the opinion that the school has been created pursuant to law such that it would be legal for the State Board of Vocational Education to enter into a contract with the governing authority of Floyd County relative to that school.

OPINION 68-369 (Unofficial)

525 August 26, 1968

The Ga. Election Code of 1964 applies to any election or primary to fill any federal, State, or county office. Ga. Code Ann. 34-102. All laws and parts of laws in conflict with such Code were repealed upon passage of the Act in 1964. Accordingly, House Bill 937, Ga. Laws 1950, pp. 2615-17 has been affected to the extent such law is inconsistent, or in conflict with, the Georgia Election Code.
I am, of course, unfamiliar with the manner in which Ga. Laws 1950, pp. 2615-17, has been interpreted in Clinch County in the past. However, if the statute has been interpreted as requiring less than a majority of votes cast for the chairman or vice chairman of the Board of Commissions, then there would be a definite conflict with Ga. Code Ann. 34-1514 which requires that any candidate for public office other than that of Presidential elector receive a majority of the votes cast; and, in the event that no candidate receives such majority, that a run-off election be held between the two candidates receiving the highest number of votes.

OPINION 68-370 (Unofficial)

August 27, 1968

You have asked whether it is permissible to allow persons to solicit signatures on a petition for referendum within 250 feet of the polling place.

Ga. Code Ann. 34-1307 provides in relevant part that:

"No persons . . . shall solicit votes in any manner . . . nor ... distribute any campaign literature, newspaper, booklet, pamphlet, card, sign, or any other written or printed matter . . . in support of any person, party, body or proposition on any election or primary day within two hundred fifty feet (250') of any polling place . . . . " (Emphasis added).

If the language of a statute is plain, it is not open to construction. Stand. Oil Co. of Ky. v. State Revenue Commission, 179 Ga. 371, 373 (1934). Clearly, a signature on a petition, in and of itself, can not be construed to be a vote.

526
Similarly, while a petition is usually circulated, its purpose would be defeated if it were "distributed" and, accordingly, even if it were to be considered as campaign literature, would fall without the prohibition. Consequently, I do not believe it would be improper under normal circumstances to solicit signatures for a referendum petition at a primary.
It should be noted, however, that the foregoing conclusion relates only to normal circumstances. Thus, it would not apply to a situation in which such a petition or referendum can be construed to be a vote for or against any candidate for whom the electors are voting. Such a situation might arise, for example, when one of the candidates has campaigned for or against such a referendum or for or against the end sought by the referendum. Nor would it be proper to allow such solicitation within the polling place when to do so would result in printed matter other than that required by the Election Code being posted within the room. Ga. Code Ann. 34-1319 (d). Similarly, such solicitation should be prohibited within the polling place if it would make it difficult for the poll manager to keep order in the polling place. Ga. Code Ann. 34-1319(g). Finally, it is clear that no solicitation should be carried on in the enclosed place reserved for voters, persons giving them assistance and constables. Ga. Code Ann. 34-l319(e).

OPINION 68-371

August 27, 1968

This is in reply to your request for an official opinion as to whether the Structural Pest Control Commission is charged with a legal duty to approve the bonding, surety or insurance company from which a licensee obtains a bond, or whether the Commission is under a duty to approve or disapprove of the legal sufficiency and content of the instrument between the licensee and his customer.

The bond in question is defined in Ga. Code Ann. 84-3402(n), as:

"A written instrument issued or executed by a bonding, surety or insurance company, licensed to do business in this State, or otherwise approved by the Commission, guaranteeing the fulfillment of the agreement between the licensee or business entity and his customer."

527
While the law does not require that a pest control service be bonded, it is provided in Ga. Code Ann. 84-3409(e), that:
"No licensee or business entity represented by the licensee shall advertise or in any way use the words 'bond' or 'bonded' in any manner in connection with his pest control business operations unless the licensee or business entity shall have an instrument then in force, or that is available to each customer, that comes within the definition of a bond as defined in this Chapter. Each licensee shall submit proof of such instrument to the Commission."
No specific duty is cast upon the Commission to "approve" the bond which a licensee may obtain, but the licensee is charged with the duty of submitting "proof" of such bond, as defined in the statute, to the Commission.
It is my opinion that the Commission is not required to approve such bonds as to matters of substance or legal sufficiency. In Campbell v. Benton, 217 Ga. 368 (1961 ), the court referred to the general rule applicable to statutory bonds as follows:
"Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the Ia w required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute by the courts . . . . Whatever is included in the bond, and is not required by Ia w, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it; but such rule applies only to matters of substance and not to mere matters of form." See also Paster v. Maryland Cas. Co., 97 Ga. App. 263 (1958).
Considering the foregoing, if the bond sufficiently indicates that it was executed for the purpose of complying with the statutory requirement, the Commission has no duty to issue its approval or disapproval as to the legal content of the instrument.
With regard to matters of form, it is my opinion that the "proof" of such bonds, which the licensee is required to submit, should include proof that the surety issuing the bond is licensed

528
to do business in this State. It is suggested that this proof could be in the form of a certificate from the Insurance Commissioner as to the status of the surety. The Commission is charged with no duty to approve the surety, beyond ascertaining that the surety is licensed to do business in Georgia.

OPINION 68-372 (Unofficial)

August 27, 1968

This is in response to your letter requesting a legal opinion as to whether or not Ga. Code Ann. 32-1004 is applicable to the Butts County School System, which you say was not in existence prior to the adop:ion of the Constitution of 1877, and, if that section is applicable to such school system, whether a person holding a four year degree with two years classroom experience would be qualified to become the superintendent of your school system.

Assuming you are correct that your system was not in existence prior to the adoption of the Constitution of 1877, I would be of the opinion that Ga. Code Ann. 32-1004 would be binding upon the Butts County Board of Education.

I regret to state, however, that I am not in a position to pass upon the qualifications of your proposed candidate for superintendent since I am not familiar with all the facts relating to his qualifications and I am not authorized by law to pass upon such matters even if I were familiar with those facts. Under law,

"... candidates for the position of county superintendent of schools must file with the State Board of Education a certificate under oath, showing qualification hereunder. ..." Ga. Code Ann. 32-1004.

You should address any further correspondence with reference to this matter to the State Superintendent of Schools, since this office is not adequately staffed to handle requests for legal opinions from individual school systems.

OPINION 68-373

August 27, 1968

This responds to your request for my official opinion as to whether or not the Georgia State Board of Education can enforce

529
in court notes and agreements, properly executed on your standard forms, given in consideration of scholarship payments made pursuant to Art. VII, Sec. I, Par. II of the Constitution (Ga. Code Ann. 2-5402(3)) in order to enable Georgia residents to become teachers.
OPINION
Assuming only that the note or agreement has been properly executed on your standard forms and the payments have been made pursuant thereto, I would anticipate no difficulty in your being able to collect the monies which become due when the student fails to complete the teaching obligations provided for therein.
DISCUSSION
One might anticipate that students would attempt to raise their minority as a defense to claims for breach of these notes and agreements. In Georgia, one is a minor until he reaches age twenty-one. Ga. Code Ann. 74-104.
Although as a general rule a minor may avoid his contracts, except those for his own necessaries not sufficiently supplied by his parents or guardian, Ga. Code Ann. 20-201, and while the courts probably would not consider teacher education a necessary, Mauldin v. Southern Shorthand & Business University, 126 Ga. 681 (1907), White v. Sikes, 129 Ga. 508 (1907), yet there are several well-recognized exceptions to this rule ,which should be sufficient to avoid the defense of minority in such lawsuits. First, if the minor is 18 years of age or older and is married, such notes and agreements are as binding upon him as upon an adult. Ga. Code Ann. 20-201. Second, if the student, after reaching age twenty-one, receives funds under this program, or otherwise ratifies the note or agreement, he validates all previous agreements ab initio even though they were made when he was an infant. Ga. Code Ann. 20-201, Turner v. Little, 70 Ga. App. 567 (1944). Third. and most important, all scholarship payments made pursuant to this constitutional authorization should be construed not to be subject to the defense of minority since the constitutional provision contemplates agreements which necessarilv must bind minors. Ga. Code Ann. 20-205, 27 Am. Jur. Infants, 12, 14.
In any event, the note and agreement are enforceable against the student's parents or guardians, Brown v. Institute of Business and

530
Accounting, 63 Ga. App. 870 (1940), although the nole is not negotiable since it does not contain an unconditioned promise to pay a sum certain in money. Ga. Code Ann. 109A-3-106, 109 A-3-107. The defense of minority is personal to the minor and may not be claimed by another. Ga. Code Ann. 20-202.
The State Board of Education having been authorized to enter into such agreements and notes, Ga. Code Ann. 2-5402(8), would be the proper party plaintiff to sue for the enforcement thereof. Regents of the University System v. Baldwin, 49 Ga. App. 602(1) (1934).

OPINION 68-374

August 28, 1968

In your letter you ask what effect the "Prestige License Plates Act" (Ga. Laws 1968, p. 1404) will have on the issuing of special plates to State Government Department Heads and Members of the General Assembly. You also ask whether this Act will affect other special plates provided for by statute.
The "Prestige License Plates Act" allows resident owners of motor vehicles to purchase personalized license plates for a fee of $10.00 in addition to the regular motor vehicle registration fee. Section 6 of this Act specifically provides that the "Act is supplemental to the motor vehicle licensing laws of Georgia and nothing herein shall be construed as abridging or repealing such laws."
The legislature has previously required the issuance of special license plates as follows:
1. Amateur radio station operators, Ga. Laws 1951, p. 653, Ga. Code Ann. 68-214.1.
2. Members of the National Guard, Ga. Laws 1953, Nov. Sess., p. 57, Ga. Code Ann. 68-223.
3. Citizens Band Radio Station Operators, Ga. Laws 1968, p. 43.
4. Disabled Veterans, Ga. Laws 1956, p. 336, as amended, Ga. Code Ann. 68-254, and Ga. Laws 1967, p. 539, Ga. Code Ann. 68-254.1.
5. Antique car owner,s, Ga. Laws 1958, p. 302, Ga. Code Ann. 68-256.

531
6. Government vehicles, Ga. Laws 1960, p. 777, Ga. Code Ann. 68-260.
7. Members of the General Assembly, Ga. Laws 1968, p. 1216.
8. Commanders of certain patriotic organizations, Ga. Laws 1960, p. 3.
These statutes provide a procedure for the issuance of the special license plates and in some instances an additional fee. It is my opinion that the "Prestige License Plates Act" does not affect the issuance of special licenses under the above statutes.
Since the passage of the 1968 amendments, you are required to charge $10.00 for all special plates except the plates listed above which are issued in accordance with the Act authorizing them.

OPINION 68-375 (Unofficial)

August 28, 1968

You pose certain questions concerning excess funds resulting from the collection of back school taxes currently in the hands of the Board of Education of your County.

In essence the questions are:

Should the funds over and a hove the amount required to meet the current budget of the Board of Education be reflected in a proportionate reduction of the proposed millage rate for the next year?

or

Should the funds over and above the amount required to meet the current budget of the Board of Education revert to the Board of Commissioners to be applied to certain other county expenditures?

The answer to the first question is found in County Board of Education of Wilcox County v. Board of Commissioners of Roads and Revenue of Wilcox County, 20 I Ga. 815 (1947), where that court stated that:

"Under the constitutional mandate [Art. VIII, Sec. XI I, Par. I of the Constitution of the State of Georgia], and other

532
authorities cited [Ga. Code Ann. 32-1118; Smith v. Board of Education of Washington County, 153 Ga. 758 (1922); Rabinowitz v. Douglas, 168 Ga. 697 (1929)], it is not material whether or not the Board of Education of Wilcox County may have had on hand a substantial cash reserve; nor is it material that the board of commissioners may not have concurred in the reasons prompting the recommendation made. The fact that money in excess of that actually to be used might be raised by such levy, was no concern of the Board of Commissioners of Roads and Revenue, such board not being vested with discretionary power as to the recommendation made. The board of commissioners is bound by the highest law that the people of Georgia can enact, the Constitution of the State."
From this quote it can readily be seen that the Board of Commissioners of Macon County has absolutely no say whatsoever as to whether or not the Board of Education of Macon County should reduce its proposed millage rate for school taxes for the next year.
The answer to the second question is found in Art. VIII, Sec. XII, Par. I of the Constitution of the State of Georgia and in Ga. Code Ann. 32-942. A portion of the above referred to constitutional provision states that:
"School tax funds shall be expanded only for the support and maintenance of public schools, public education and activities necessary or incidental thereto, including school lunch purposes."
The above Georgia statute provides in part that:
"When common school fund shall be received and receipted for, it shall be the duty of the officer authorized by law to receive such fund and keep the same separate and distinct from other funds, and said funds shall be used for educational purposes and none other, . . . ."
Also see Atlanta Chamber of Commerce v. McRay, 174 Ga. 590 (1931) and Burk v. Wheeler County, 54 Ga. App. 81 (1936). From the above Georgia laws (and cases) it is clear that the excess fund cannot revert to the Board of Commissioners of Macon County to be applied to certain other county expenditures.

533
However, this is not to say that a citizen and taxpayer may not under certain unusual circumstances be able to resist an excessive levy by a county board of education. See Board of Education of Monroe County v. Thurmond, 162 Ga. 58 (1926), Seaboard Air Line Railway Company v. Wright, 165 Ga. 367 (1927) and Doney v. County Board of Education of Telfair County, 203 Ga. 152 (1947).

OPINION 68-375.1

August 28, 1968

You have requested advice on the procedure the Board of Corrections should follow in purchasing several tracts of improved land for the use of the Georgia Industrial Institute, Alto, Georgia.
OPINION

(1) Obtain plats or surveys of the land tracts you wish to purchase;

(2) Have disinterested appraisals made of the fair market value of the land tracts;
(3) Obtain the lowest firm offers, or, if desirable, options to purchase from the sellers;
(4) Collect the above items, along with your recommendations, and present the entire proposal to the Governor, acting in his capacity as Chairman of the "State Properties Acquisition Commission". This Commission is composed of the Governor, the State Auditor, and the Attorney General, all of whom must approve the proposal;
(5) After the purchase has been approved by the Commission, or if circumstances warrant, simultaneously while the Commission's approval is being obtained, this matter should be referred to our office and we will have the title investigated and will obtain title insurance from one of the responsible and reputable title insurance companies;
(6) The "State Properties Acquisition Commission" will then consummate the sale and "acquire [the] real property", acting on behalf of the State of Georgia and the Board of Corrections.

534
DISCUSSION
Items 1, 2 and 3 above are only suggestions and you may want to vary these according to the circumstances. For example, it would be your decision as to whether it would be necessary to acquire formal options to purchase or rely on the seller's "firm offer". The form of the proposal and your recommendations to the Commission are also discretionary.
However, most departments and agencies of the State, including the Board of Corrections, must acquire all real property through the Georgia State Properties Acquisition Commission, created under the authority of Ga. Laws 1965, pp. 396, 397 (Ga. Code Ann. 36-l02a; 36-l04a(c)). This Commission is composed of the Governor, acting as Chairman; the State Auditor, acting as Secretary of the Commission; and the Attorney General. (Ga. Code Ann. 36-l02a). These three members must unanimously approve the purchase. (Ga. Code Ann. 36-l04a).
Although you have indicated that the Governor "is going to make funds available from his emergency fund to acquire this property", the Commission is also authorized to request the "fiscal authority(s)" to set up and make available funds for the purchase "pursuant to the budget laws". (Ga. Code Ann. 36l05a). Also, the Commission is authorized to contract with the Board of Corrections "for reimbursement to the Commission of funds expended" for the purchase of the property. (Ga. Code Ann. 36-l06a).

OPINION 68-376

August 29, 1968

This is in reply to your request for advice concerning State enforcement of brake fluid standards which are now in effect as Federal Motor Vehicle Safety Standards under Section 103 of the National Traffic and Motor Safety Act of 1966, 15 U.S.C. 1391, et seq., and 1301 to 1303.
The regulatory sc~eme evidenced by an examination of the Act as a whole, including the specific Federal enforcement provisions, is evidence of a purpose to preempt State law with respect to the standards adopted and the enforcement of those standards prior to the first retail sale. Garner v. Teamsters Union, 346 U.S. 485, 74 S. Ct. 161 (1953).

535
The legislative history clearly shows that State enforcement of standards was not to commence until Federal enforcement ended and that was to be at first retail sale. S. Rep. No. 1301, 89th Cong., 2nd Sess. (1966); H.R. Rep. No. 1776, 89th Cong., 2nd Sess. (1966); H.R. Rep. No. 1919, 89th Cong., 2nd Sess. (1966); Hearings before the House Committee on Interstate and Foreign Commerce, H.R. 13228, 89th Cong., 2nd Sess. (1966). Brake fluid standards may not, therefore, be enforced by the State until after the first sale, and only then if the State has adopted identical standards.

OPINION 68-377 (Unofficial)

August 29, 1968

You requested advice as to whether an individual member or the entire body of the Board of Commissioners of Roads and Revenue of a County has the authority to sit with the Board of Tax Assessors during their deliberations.

Ga. Code Ann. Ch. 92-69 sets out the provisions dealing with the county boards of tax assessors and their powers and duties. A reading of Chapter 69 generally and of Ga. Code Ann. 928911 specifically renders it abundantly clear that the duty to assess property for taxation is upon the Board of Tax Assessors and that no other person or no other body has the authority to assist the board in its duty to see that all taxable property within the county is assessed and returned at its just and fair valuation.

OPINION 68-378

August 29, 1968

This is in reply to your letter inquiring whether the State of Georgia can tax the unrelated business income of a tax exempt corporation under Ga. Code Ann. 92-3105, and if so, would the fact that the tax exempt corporation engaged in this business exclusively on the premises of a taxable corporation, and said taxable corporation excluded all other outside business, other than the tax exempt corporation, from these premises, still be considered as engaging in competitive commerce as required by this statute.

You have stated that this tax exempt corporation was

536
incorporated under the Laws of the State of Georgia for the purpose of carrying on the welfare work of the employees of the taxable corporation, including the operation of any concession for the sale of lunches, soft drinks, candies, etc. within the premises of the taxable corporation's plants only; performing charitable works of all kinds, and generally doing all things for the welfare of the employees of the taxable corporation.
The Federal Government issued a Deficiency Report in 1965 covering fiscal years 1959 through 1964 which determined that this tax exempt corporation was subject to the unrelated business income tax of Section 511 of the Internal Revenue Code adopted in 1954 which imposed a tax on the unrelated business income of certain tax exempt corporations. This unrelated income, in general, means that which is unrelated to the exempt function of the organization. The corporation agreed to this deficiency.
The State of Georgia is empowered to tax the unrelated business income of a tax exempt corporation under the following provision added to Ga. Code Ann. 92-3105 on June 24, 1955:
"Provided, however, that no such society, order, association, cooperative, fund, chest, foundation, league, chamber, board, club, company, charitable trust or organization which engages directly or indirectly in competitive commerce with private or public corporations, individuals, partnerships or associations not so exempt, in the marketing of either products or services, shall be so exempt from taxation as to that portion of its net income attributable to such competitive commerce."
The similarity of the Federal and Georgia provisions seem clear when their purpose is understood. Clearly, the purpose of the Georgia provision is to keep such tax exempt corporations from having this tax advantage when competing with those businesses not so exempt. Likewise, the problem to which the Federal Tax on unrelated business income is directed is primarily that of unfair competition. Samuel Friedland Foundation v. U.S., 144 F. Supp. 74 (D.C. N.J. 1956). Mertens, Law of Federal Income Taxation, Vol. 6, 34.14 states:
"When it came to the attention of the Treasury Department that certain educational and other organizations were engaged in competitive business operations which had no

537
relatiou to their exempt non-business purpose, an atlempt was made to deny the benefits of tax exemptions to such organizations."
The result was the Revenue Act of 1950 that puts a tax on these unrelated business incomes.
'The legislative history of the Federal statutes indicate that they were directed primarily at unfair competition by tax exempt organizations with taxed business concerns." Cooper Tire & Rubber Co. Employees Retirement Fund v. Commissioner of Internal Revenue, 306 F.2d 20, 21 (1962).
Therefore, the purposes of these two provisions are identical.
When this tax exempt corporation operates concessions for the sale of lunches, soft drinks, candies, etc. it is engaged in a competitive business activity with all other individuals, corporations, etc. selling these same goods, as the term "competitive business" is merely a descriptive term meaning a "similar business." Martin v. Hawley, 50 S. W.2d 1105, 1109 (Texas 1932).
The fact that this tax exempt corporation handles this type of business exclusively on these premises and any outside businesses of this nature are excluded does not mean that this tax exempt corporation does not come within the a hove-mentioned provision of Ga. Code Ann. 92-3105. Because this tax exempt corporation has the exclusive franchise to this market on these premises there are no other parties soliciting purchasers of similar goods in the same territory at the same time, therefore, no "direct" competition exists. However, Section 92-3105 goes further and also includes activities "indirectly" in competitive commerce with other individuals, corporations, etc. not so exempt. Likewise, it is not material that these profits are used exclusively for welfare purposes, for the test is rather where did these profits come from in regard to this unrelated business income. U.S. v. Fort Worth Club of Fort Worth, Texas, 345 F.2d 52 (5th Cir., 1965).
In this case, not only is this tax exempt corporation "indirectly" in competition with all vending machine dealers and other concession operators for this market but basic principles of supply and demand show that if these goods were not sold in these plants, they would have to be purchased outside and therefore

538
those merchants on the outside who would realize these additional sales but for the operations of this tax exempt corporation are also in competition with it.
Therefore, it is my official opinion that the State of Georgia can tax the unrelated business income of a tax exempt corporation under Ga. Code Ann. 92-3105 and in this case, the fact that this tax exempt corporation is engaged in competitive commerce with non-exempt businesses, this tax exempt corporation loses its tax exemption, under Georgia as well as Federal Law, as to that portion of its net income attributable to such competitive commerce, notwithstanding the fact that all other businesses are excluded from the plants where this business is conducted, or that this business is only conducted within these plants.
Since the Income Tax Unit has no record of this corporation either as an exempt corporation or as a taxable one, I must assume that this cor~oration has never filed a return, and therefore Ga. Code Ann. 92-3303(b)(4) would apply to the period of limitation upon assessment and collection.

OPINION 68-379 (Unofficial)

August 30, 1968

You ad vised that the attorney for the Savannah Electric and Power Company had raised the question as to whether or not all of the trustees of OSCA would be required to sign a deed.

I have discussed this matter with the Deputy Assistant Attorney General, and we are in agreement that the signature of all the trustees on a deed is not required so long as the Commission has properly granted authority, by resolution, to the Chairman to execute the conveyance on behalf of the Commission.

Although the members of the governing body of OSCA are referred to as "trustees," this terminology does not have the effect of requiring application of the general rule of trusteeship which would require concurrent action of co-trustees. To apply the rule would, under certain circumstances, prevent the Commission from effecting actions approved by the vote of a majority of a quorum of the Board of Trustees.

I refer you to Malcom v. Fulton County, 209 Ga. 392, 397

539
(1952), and cases cited therein, in which the court held that where the Board of County Commissioners of Fulton County had validly authorized the chairman to execute a contract of sale, the signature of the chairman on behalf of the county was sufficient, and it was not necessary for all the members of the board to sign the instrument. That case appears to be directly applicable to actions taken by OSCA.
To dispel any further doubt as to the validity of any deed or contract executed by OSCA, it is suggested that at the meeting next following the execution of such an instrument, it be presented before the Board of Trustees and ratified by them.

OPINION 68-380 (Unofficial)

August 30, 1968

You requested aid and advice in the computation of the tax due on a certain mineral lease.
To be able to assist you in this matter it will first be necessary to give the generally accepted definition, as used in oil and gas or mineral lease parlance, of certain terms commonly used in such leases.

BONUS: This is the cash (or otherwise) consideration paid, or agreed to be paid, to the lessor for the execution of a lease.

RENTAL: This is the cash (or otherwise) consideration paid, or agreed to be paid (usually annually), to the lessor for the use of the property. Frequently, and particularly in the oil and gas trade, the rentals are suspended during the period of production.

ROYALTY: This is the undivided, fractional portion reserved to the lessor of the oil and gas or minerals after the lessee has produced the same.
From the above definitions it can be seen that consideration paid for a lease consists of the bonus and/ or rentals, if any, and as such would be used in the computation of the tax due on the transfer but that any royalty retained would be a reservation of a portion of the property itself by the lessor and as such would not be used in the computation of the tax due on the transfer.
As a word of caution, sometimes it is necessary to look at what is being done and not the terms being used in the instrument.

540
Now a~ to computation of the tax on the transfer of the lease in question it would seem that the bonus consists of the "One Dollar ($1.00) in hand paid and other good and valuable considerations. . . ." excluding the agreement to pay an annual rental of $500 for each lease year and that the rental consists of the $500 payment per year for the five year, primary term, of the lease. Although the lease uses the term "additional rent in the form of royalty" it would seem that any payments above the first $500 per year would in fact be royalty and not subject to computation in the transfer tax.

OPINION 68-381 (Unofficial)

August 30, 1968

This responds to your request for an opinion on several questions arising under the following portion of Ga. Code Ann. 88-506(d):

"Provided, however:_, that in the event the allegedly mentally ill person shall be financially unable to employ counsel to represent said person in said hearing, then the ordinary shall appoint an attorney to represent said person."

You have asked me to assume, for purposes of answering your questions, that the person in question is totally unable to make decisions for himself. One should note, however, that the application of this provision is not conditioned upon whether or not the subject person is medically or legally competent to make decisions.
Your questions and my answers follow.
l. "Is it my duty to postpone all hearings until it can be determined if the allegedly mentally ill person is financially unable to employ counsel?"

This question deserves an affirmative answer. The apparent

purpose of the provision is to assure legal representation during

such hearings irrespective of affluence or lack thereof. This

purpose could be defeated either wholly or in part if counsel is not

a.ppointed

(when

required)

before

the

commencement '

of

the

hearings.

"2. Is it my duty to appoint counsel if a member of his

541
iamily or his guardian ad litem states that he is unable to employ counsel?"
I am of the opinion that the question of financial ability to employ counsel is one which must be decided by the ordinary after consideration of all legal evidence available to him. Thus, while the statements of such persons certainly would constitute some evidence of financial ability, you would not be bound thereby.
"3. Is it my duty to appoint counsel for him ifthe guardian ad litem and/ or members of his family state that counsel is not desired?"
"4. If one or more of the class (Guardian ad litem and members of the family) request counsel, is it my duty to so appoint if the remainder of the class do not desire counsel?"
I am of the opinion that the wishes of his relatives or guardian ad litem are not binding or controlling, although an ordinary certainly would be authorized to consider those wishes in reaching his decision. In accord: Op. Atty. Gen. 1963-65, p. 730.
That particular portion of Op. Atty. Gen. 1963-65, p. 526, wherein it is stated:
" ... the word 'shall' makes it mandatory that an attorney be appointed in every case where the mentally ill person has no counsel. . ."
hereby is withdrawn and rescinded because the statute does not require appointment of counsel in all cases where a person has none; rather, appointment is required upon the ordinary's finding, based upon all available legal evidence, that the person is financially unable to employ counsel to represent himself at the hearing.
You also have asked whether Ga. Code Ann. 49-612 has been repealed and, if not, the procedure which an ordinary should follow when that section is relied upon. I have been unable to find within the extensive repealer of the Georgia Health Code, Ga. Laws 1964, pp. 499, 650-64, or elsewhere, any express repeal of that section. Whether or not the enactment of Ga. Code 88-506 repealed it by implication is a question which is not susceptible of a positive answer. As you doubtless are aware, repeals by implication are not favored and are said to occur only in those instances when the old and new provisions are so inconsistent that

542
they can not be harmonized. Strickland v. Peacock, 209 Ga. 773 (1) (1953), Nash v. National Preferred Life Ins. Co., 222 Ga. 14 (3) (1966). I am reluctant to venture a guess as to whether an implied repeal has occurred.
If someone insists upon proceeding under Ga. Code Ann. 49612, and you are of the opinion that he may so proceed, then the procedure would appear to be for you, or the Judge of the Superior Court of Stewart County in your absence from the county, to
" . . . issue a warrant as in criminal cases for the arrest of such insane person, to bring him before [you or] him on a day certain... ,"Ga. Code Ann. 49-612.

OPINION 68-382 (Unofficial)

September 4, 1968

You inquired as to the propriety of the election of County Commissioners in Macon County, Georgia, pursuant to a procedure whereby candidates are required to be a resident of a specific district, but are elected by a countywide vote.

According to the information in your letter, Macon County, Georgia, is divided into five (5) Commissioner Districts with vote potential. varying from 2469 to 441.

In answer to your question, your attention is called to the case of Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 LEd. 2d 656 (1967) wherein the United States Supreme Court considered the apportionment of a borough form of Government established by the consolidation of the City of Virginia Beach and Anne County, Virginia. The governmental form established provided for seven boroughs and a council composed of eleven (11) members, four (4) of which were elected at large without regard to residency, while each of the other seven (7) were required to be a resident of one of the seven boroughs, although elected by the voters of the entire city. The seven boroughs had unequal population ranging from 733 to 29,048. In the above-referred to decision, the United States Supreme Court reversed the judgment of the Court of Appeals which had held that the plan was violative of the "one man, one vote" rule. In its decision, the Supreme Court stated that:

543
The seven-four plan makes no distinction on the basis of race, creed, or economic status or location. Each of the eleven councilmen is elected by vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of a borough from which he is elected, is not fatal . . . by analogy the present consolidation plan uses boroughs in the city 'merely as a basis of residency for candidates not for voting or representation.' He is nevertheless the city's, not the borough's councilman . . . .
Thus, it is my unofficial opinion that in view of the Supreme Court decision in Dusch v. Davis, supra, and assuming that the "one man, one vote" rule applies to the election of County Commissioners in Georgia, which Greer v. C. 0. Polk, Ordinary of Henry County, infra, appears to have concluded in the affirmative, and assuming the use of election districts for residency purposes which are unequal in population, but that a countywide election is used, such meets the constitutional requirements as to the "one man, one vote" rule.
In Greer v. C.O. Polk, Ordinary of Henry County, Georgia, Ci vii Action No. 11970, United States District Court, Northern District of Georgia, Atlanta Division, residents of Henry County attacked the apportionment of County Commissioners for Henry County whereby each Commissioner was elected from a separate Commissioner District which varied widely in the number of registered voters. The District Court held on July 25, 1968, that the apportionment was invalid and required the election to be held countywide, i.e., each Commissioner was voted on by the entire county.
In your letter you stated that "I thought the Unit System in this State was out and the Courts have directed that such be the case." In Toombs v. Fortson, 205 F. Supp. 248 (1962), a ThreeJudge United States District' Court held that the Georgia procedure for representation in the Georgia House of Representatives whereby the 8 largest counties had three representatives, the next 30 largest counties had two representatives, and the remaining 121 counties had one representative each and in the Georgia Senate whereby, with two exceptions, every three (3) counties had one (1) Senator which was rotated among the three counties invalid and required the apportionment of at least one chamber. Additionally, in Gray v.

544
Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed. 2d 821 (1963), the United States Supreme Court held invalid the Georgia "County Unit System" which was utilized in the Democratic primary election where by in each county in the State of Georgia the candidate which received the highest number of popular votes carried the county and was entitled to unit votes equal to twice the number of representatives the county had in the Georgia House of Representatives.
Thus, the Supreme Court required that the candidates selected in the primaries be by popular vote. Thus, as you can see, the Court's decisions on the "County Unit System" were related to State representation and the voting in State primaries and not to matters involving the apportionment of County Commissioners.
Therefore, in conclusion as stated in the heretofore mentioned case of Dusch v. Davis, the County Commissioners elected in Macon County, Georgia, do not represent just the district in which they reside, but since they are voted and elected by a countywide vote they represent the people of the entire county and the United States Supreme Court has approved such a system.

OPINION 68-383 (Unofficial)

September 4, 1968

In view of Section 47 A(g) of the Implied Consent Law, it is the writer's opinion that the law does not make mandatory the ownership by each sheriff's department of an intoximeter. The law specifies that a person has a right to demand a blood or breath test and that, if the facilities for taking the necessary test specimen are available in the county of confinement, the custodial officials must insure the taking of the necessary specimen in compliance with the accused's request.

Section 47A (g) requires the jurisdiction having custody of the arrested and tested person to bear the cost of such test. The purchase, maintenance and operation of an intoximeter would, in the opinion of this writer, be such a cost. In view of the Act's failure to specify any other fund or funds from which such instruments are to be purchased, it must reasonably follow that the purchase price is to be borne by the jurisdiction which takes custody of the arrested person for possible prosecution therein. Of

545
course, nothing in the Act would prohibit a sharing arrangement with other Ia w enforcement agencies within or without the jurisdiction. In fact, the wording of Section 47 A(g) is such as to indicate that should the facilities for obtaining a specimen be available within your county as a part of the operation of any other Ia w enforcement agency, it will be mandatory upon your department to comply with any request by an arrested person that he be tested thereupon.
The regulatory scheme currently contemplated by the Department of Public Safety will only make the arresting officer responsible for the administrationt of an on-the-spot screening test of the arrested person's breath utilizing the simple diachromate alcolyzer. The utilization of an intoximeter to obtain evidence admissible under the Act will require a duly-qualified, licensed operator. Such operators will as a minimum have completed the course on the theory and operation of the intoximeter currently offered at the Georgia State Police Academy. It is doubtful that every arresting officer will be so licensed.
In view of Section 47 A(g) it is the writer's opinion that it will not be necessary that all persons arrested for driving under the influence take a blood or breath alcohol test. If, however, the facilities for taking the blood or breath speciments are available in the county in which the person is arrested, and the person exercises his right to demand such a test, the test must be ad ministered.
The regulatory scheme. which the Department of Public Safety contemplates provides for a permanent or semi-permanent location of the intoximeter. It is the writer's understanding that this provision is a requisite inherent in the design of the particular instrument. The calibration of the instrument is such as to negate excessive handling. This is not a requirement of the Act and it could possibly occur that more inherently mobile instruments will be approved by the Director, State Crime Laboratory, in the future. The permanent or semi-permanent location of the intoximeter should be dictated by the convenience of the jurisdiction and the operator(s).

OPINION 68-384

September 4, 1968

You have requested my official opinion concerning the income

546
tax consequence on certain transactions involving out-of-state financial institutions. You state that these institutions in transactions consummated outside of Georgia purchase loans secured by real property located in Georgia. The out-of-state institution maintains no office or employees in Georgia and does not negotiate the original loan.
You ask what would be the Georgia income tax consequences to the out-of-state institution in the event it becomes necessary that it foreclose on Georgia real property and hold and operate the same for a reasonable period prior to disposing of it.
The Georgia income tax is levied upon corporations "owning property" or "doing business" within the state. Ga. Code Ann. 92-113. Therefore, the out-of-state institution would clearly be liable upon any income realized from real property located in Georgia upon which it had foreclosed.
Otherwise, the corporation is liable for income taxes only if it is "doing business" within the state. What is "doing business" can only be determined by an analysis of the individual transaction and the tax statute involved. For instance, foreclosing upon property located within the state and operating it for a reasonable time has under franchise tax statutes been held not to be "doing business". Sillin v. Hessig-Ellis Drug Co., 181 Ark. 386, 26 S.W.2d 122 (1930).
The only case under the Georgia Income Tax Act is Interstate Bond Co. v. State Revenue Commissioner, 50 Ga. App. 744 (1934). In that case a Georgia financial institution was lending money secured by tax liens on real estate located in other states. Our court held that the entire income was derived from the use of its intangible property, to wit: its money, and that its income was not derived from the property located in other states which property was simply the security for the money which was loaned here in Georgia. This case appears to be the converse of your situation.
I conclude that the business of the out-of-state institution is that of lending money, not holding property. Therefore, the fact that the out-of-state institution incidentally forecloses on Georgia property and holds that property for a reasonable time before it can be disposed of by sale would not constitute "doing business" within the state under the income tax act and such activities while

547
it would subject the income from the property involved to our income tax would not subject the out-of-state institution to income tax on that portion of its entire investment portfolio which incidentally happened to be secured by real property located in Georgia.

OPINION 68-385

September 5, 1968

This is in reply to your request for my official opinion on the following question: Is there any statute or constitutional provision which would make it illegal for a member of the State Board of Warm Air Heating Contractors to serve on said board while in the full time employ of the State as an Engineer at the Georgia Regional Hospital in Atlanta?
It is my opinion that there is no statutory or constitutional provision which would render such full time employment in the executive branch of the State government and simultaneous membership on a State Board illegal or inconsistent.

OPINION 68-386 (Unofficial)

Septembt!r 5, 1968

It is my understanding from reading your letter and attachments thereto that you purchased an automobile in South Carolina and paid a sales tax on the purchase price to that State. Subsequently, you brought the automobile to Georgia where you were charged a use tax.

You ask for an explanation of Georgia Use Tax Law. The Georgia Retailers' and Consumers' Sales and Use Tax Act (Ga. Laws 1951, p. 360), as amended, imposes a tax upon the first instance of use, consumption or distribution within this State of tangible personal property purchased at retail outside this State. However, a credit is given for taxes paid in another State provided that State reciprocates by granting a credit against its use tax for sales or use taxes paid to Georgia. (Ga. Code Ann. 923402a(b)).

Since South Carolina has not seen fit to reciprocate by granting credit for like taxes paid in this State, you are liable for the

548
Georgia use tax on the automobile purchased in South Carolina at retail and later brought to this State for use herein. However, the Governor of Georgia signed an Executive Order on March 11, 1968 suspending the collection of the use tax until the next session of the General Assembly, on tangible personal property purchased outside of Georgia by persons who at the time of purchase are not domiciled in Georgia but who subsequently become domiciled herein provided the property is not for use in a profession, trade or business.
There are not sufficient factS in your letter for me to determine whether or not your situation comes within the terms of the Executive Order dated March 11, 1968, so I am forwarding your letter to the Sales and Use Tax Unit of the State Revenue Department for their consideration. You should hear from that Department within a few days.

OPINION 68-387 (Unofficial)

September 9, 1968

You have asked whether students enrolled at a branch campus to be constructed in the future would be counted for the purpose of providing funds to the DeKalb Junior College. Additionally, you have asked whether the DeKalb County Board of Education could be granted authority to build a four-year college.

As you know, the Junior College Program of the State of Georgia, Ga. Laws 1958, pp. 47, 48, as amended, Ga. Laws 1964, pp. 686, 687, authorizes payments, based on student enrollment to qualifying junior colleges. One of the qualifications is that construction must have commenced on the junior college prior to January 1, 1964. The cardinal rule of construction of any statute is to give effect to the intent and purpose of the legislature. Ford Motor Company v. Abercrombie, 207 Ga. 464(1) (1950). Clearly, the intent of the legislature was to limit the payments made under the Act to these junior colleges upon which construction had commenced prior to January 1, 1964. Thus, it would not be legally possible for a junior college constructed after such date to receive the prescribed payments.

Nor would it be possible, it seems to me, to evade such result by building another junior college and calling it a branch of a

549
qualified institution, for that would make the language of the statute relating to time completely meaningless. That is not to say, however, that a qualified institution is precluded from expanding and the basic question is whether the contemplated construction is, in reality, a separate institution or an expansion of the original one. Unfortunately, I have not sufficient information to form an opinion on the subject. Generally speaking, however, I believe that in deciding the question, the courts would consider the proximity or lack of proximity of the campuses and the degree of centralized administrative control over the two campuses. Accordingly, it might be found that a separate cap1pus, removed from the alleged parent and having its own administrative officers, such as deans, would be for the purpose of the Junior College Act, a separate institution.
Authorization to operate a junior college is vested in the DeKalb County Board of Education by virtue of an amendment to the State Constitution. Ga. Laws 1962, p. 982. The Georgia Constitution is second in authority only to the Federal Constitution, U.S. Ia ws and treaties made in pursuance thereof. Georgia Constitution Art. XI I, Sec. I, Par. I I (Ga. Code Ann. 2-800 l ). Accordingly, it appears that in order to make the present junior college a four-year institution, it would first be necessary to a mend the Georgia Constitution to provide the requisite authorization.

OPI.NION 68-388

September 9, 1968

This is in response to your request for an opinion as to the authority, if any, the Sheriff of Barrow County and the municipal police of the City of Winder possess; in their official capacities, to enforce the State penal laws within Fort Yargo State Park, which lies wholly within Barrow County and partially within the City of Winder.

Local authorities may arrest offenders for violations of State law upon State property within their jurisdiction. See Op. Atty. Gen., 1960-61, pp. 580-582. The answer to your question, then, depends in large measure upon the jurisdictional limits of the Sheriff of Barrow County and the City of Winder.

In the absence of a statute providing otherwise, the authority

550
of a sheriff is coextensive with his county. 80 C.J.S., Sheriffs and Constables, 36. A sheriff acts as a conservator of the peace within his county and as such has the right and duty to enforce all laws enacted for the protection of the lives, persons, property, health and morals of the people. Elder v. Camp, 193 Ga. 320 (1942).
It is, therefore, my official opinion that the Sheriff of Barrow County, acting in his official capacity, may make arrests for the violation of State Ia ws anywhere within the park when such arrests are made in accordance with Ga. Code Ann. 27-207 which provides:
"An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant."
The jurisdiction of the municipal police of Winder is, of course, much narrower. A municipal officer is within the ambit of the above quoted statute only when he makes an arrest within the territorial jurisdiction of the city, Blair v. State, 90 Ga. 326 (1892), or in a case involving "hot pursuit" from such territorial jurisdiction, Shirley v. College Park, 102 Ga. App. 10 (1960). Nor is a municipal officer authorized to serve a warrant in the county outside the municipality. Coker v. State, 14 Ga. App. 606 (1914).
Section 2 of the charter of the City of Winder (Ga. Laws 1917, pp. 926, 927) provides that its corporate limits:
"shall extend one mile in every direction from the point where the center of the Gainesville Midland Rail way Company's main track crosses the center of Broad Street
This one mile radius encompasses approximately 10% of the park as shown on the attached map.
The charter additionally purports to extend the police jurisdiction of the City beyond its corporate limits, as follows:
" ... in addition to the jurisdiction of the municipal authorities over the territory in the corporate limits of the City of Winder, the said municipal authorities ... for the purposes of exercising police power . . . and of maintaining

551
order . . . shall have jurisdiction over all territory comprised within a radius of a mile and a half in every direction from the point where the center of the Gainesville Midland Railway Company's main track crosses the center of Broad Street . . . . " ld. at 928 (Emphasis added.)
If valid, this provision would extend Winder's jurisdiction I/2 mile beyond its corporate limits and enable it to police approximately 40 percent of the park area-that cross-hatched section shown on the attached map. If invalid, Winder's jurisdiction would extend only to its corporate limits.
Certainly the General Assembly can grant extra-territorial jurisdiction to a municipality. Op. Atty. Gen., 1948-49, p. 267. However, the caption of this Act, the relevant portion of which is quoted below, gives no indication that the municipality will be clothed with extra-territorial police jurisdiction:
"An Act to provide and establish a new charter for the City of Winder . . . and to define its corporate limits, and powers . . . and for other purposes."
In Blair v. State, 90 Ga. 326 (1892), a case in which the extraterritorial police jurisdiction of Columbus was at issue, the caption provided:
"An Act to create a new charter for the city of Columbus, and to consolidate and declare the rights and powers of said corporation, and for other purposes."
Since the caption afforded no indication that extra-territorial police jurisdiction would subsequently be granted to Columbus in the body of the act, the Supreme Court concluded that the attempted grant was unconstitutional as violative of Art. III, Sec. VII, Par. VII I of the Constitution of Georgia (Ga. Code Ann. 2-1908) which prohibits the passage of laws referring to more than one subject matter or containing matter different from what is expressed in the title thereof. Accord, Ball v. Peavy, 210 Ga. 575 (1954). See generally 13 G.B.J. 147, 6 Mercer L. Rev. 146.
The Winder Charter presents the identical constitutional question the Court decided in Blair and Ball, supra. I have no reason to suppose the matter would be decided differently today. Therefore, I am of the opinion that, except in cases involving "hot

552
pursuit," a member of the municipal police force of Winder, acting in his official capacity, may make arrests for the violation of State laws only on that portion of the park within the city limits.
0 PINI0 N 68-389 September 10, 1968
This responds to your letter asking for my official opinion on two questions relating to the Minimum Foundation Program of Education Act. You have asked, in essence, whether or not the State Board of Education may make changes in the current fiscal year allotments of State funds to local units of school administration based upon information received last month from the State Auditor indicating that errors were made in the calculation of the equalized adjusted school property tax digests of certain local units and whether or not such changes may be made for those local units in whose digests the errors appeared without making changes in the allotments to all local units.
OPINION
I am of the opinion that the State Board of Education is not authorized by law to make adjustments in the current fiscal year allotments of State funds to any local units of school administration based upon the information recently furnished to you.
DISCUSSION
The State Auditor must furnish to the State and local boards of education (and others) on or before the first day of February of each year the sum of the equalized adjusted school property tax digest for the State as a whole. He must furnish by that date each local board (and others) with its county (or other area) digest and furnish the State Board with the digests applicable to all local units. Ga. Code Ann. 92-7012, 32-622(B)(3). Using that information, the State Board of Education "shall calculate annually" the relative finanCial ability o'f each local unit of school administration to raise funds in sUpport of the minimum foundation program of educatiq.il in each local unit of administration. Ga. Code Ann. 32-622. That calculation is based upon a system of percentages of the whole. Ga. Code

553
Ann. 32-622. Therefore, it would be quite improper to make an adjustment with reference to one local unit without making appropriate adjustments as to all.
However, no provision of the Minimum Foundation Act (Ga. Laws 1964, p. 3, Ga. Code Ann. 32-601etseq.)or ofanyother law authorizes the State Board of Education to make adjustments in the calculation of local financial ability in the event that the State Auditor determines that the sum of the equalized adjusted school property tax digest furnished to the State Board for any particular county is incorrect.
It would be improper to make any adjustment in the current fiscal year allotments of State funds since State funds allotted to each local unit are determined by subtracting the local financial ability [calculated pursuant to Ga. Code Ann. 32-622(8)] from the calculated cost of providing a minimum foundation program of education in the local unit. Ga. Code Ann. 32-610. Simply stated, certain factors of the mathematical formulas may not be adjusted without making all necessary adjustments.
This is not to suggest for a moment that the Act does not authorize any adjustments in allotments. Certain adjustments based upon other factors are specifically authorized. See, e.g., Ga. Code Ann. 32-648, 32-649.
It should be obvious that the inter-related calculations required to be made pursuant to the Act must be final at some point in time. Were it otherwise, the State Board would have to recalculate the allotments for every school system in the State each time an error is discovered in the local effort calculations of any individual system. I am of the opinion that Ga. Code Ann. 92-7013 was intended to establish such finality by providing a procedure by which any local unit may challenge the correctness of the State Auditor's calcuation of its equalized adjusted school property tax digest. I have been reliably informed that the local units in question did not follow this procedure. Assuming that information is correct, it would appear to me that they have waived any right to object to their digests or to the current fiscal year allotment of State funds calculated using formulas based on such digests.
OPINION 68-390 September 10, 1968
You request my official opinion whether operators who

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contract out various phases of the mining operation are required to include those employees of the contractor directly engaged in mining for purposes of computing the number of "mining employees" and assessing the operator's license fee, graduated according to such number.
It is my official opinion that a mining operator cannot circumvent the licensing provisions of the Georgia Surface Mining Act of 1968, Ga. Laws 1968, pp. 9, 16, by conducting all or a portion of his mining operations through a number of independent contractors.
The graduation of license fees according to number of mining employees, as an index to the size of a mining operation, is a reasonable classification, such fees being assessed to help defray State inspection and regulation of surface mines. See official opinion dated August 23, 1968, addressed to you-Subject: Licensing of surface mining operators. Therefore, it would follow that mining employees of independent contractors must be considered as employees of the operator insofar as the licensing assessment is to be considered.
Should the foregoing not obtain, each contractor performing some Balkanized phase of the total operation would himself be an operator under the Act. This construction would, of course, result in an unmanageable situation.

OPINION 68-391 (Unofficial)

September 10, 1968

This responds to your request for an unofficial opinion on whether or not a local school board may adopt a policy prohibiting married students from attending school.

I am enclosing herein copies of the following previous opinions dealing with this difficult question: Op. Atty. Gen. 1954-55, p. 276; 1960-61, p. 183; 1963-65, pp. 276, 708. A cursory reading of those opinions might leave one with the impression that they are in irreconcilable conflict. Actually, they are not.
The 1955 opinion was written before the General Assembly amended Ga. Code Ann. 32-937 to authorize local school systems

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" ... to promulgate rules and regulations concerning the right of married students to attend the common schools of this State,"
whereas the other opinions have dealt with that amendment.
The common denominator of these opinions is that a local board may adopt a policy excluding married students from attending school if, and only if, that policy is reasonably related to some legitimate educational purpose. Thus, it is clear to me that a policy which would permanently and totally exclude any married student, male or female, from attending school simply because he or she is married would be an unconstitutional and void application of Ga. Code Ann. 32-937. On the other hand, I believe that a policy excluding female students from school during the period of their visible pregnancy would be held valid by the courts. The difficult questions arise as to policies which lie so me where bet ween those extremes of reasonableness. Policies lying within that large gray area of constitutionality could be considered valid only after they successfully weather lawsuits challenging their constitutionality.
OPINION 68-392 September 11, 1968
This is in response to your letter of September 9, 1968 requesting my official opinion on the question of whether a judge who has elected the benefits provided by Ga. Laws 1968, p. 275 and who has made the required contributions may retire before age sixty if he waives both the widow's benefits and a return of his contributions made under that amendment to the Act.
The applicable section provides:
"Any judge so electing shall not be eligible for appointment as Judge Emeritus until he is at least sixty years of age, except he may be appointed Judge Emeritus before reaching such age as a result of disability as provided in this Act." Ga. Laws 1968, p. 275, 276.
The narrow question presented is whether a judge's election under the 1968 amendment is irrevocable. I would favor a construction which would permit a judge to revoke such election if he waives all rights to the widow's benefits and to a return of

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all contributions made under the 1968 amendment. Such a revocation procedure should hold the Superior Court Judges Retirement Fund harmless and should preclude any legal objection on the part of the Trustees.

OPINION 68-393 (Unofficial)

September 13, 1968

This is in reply to your letter asking for information regarding the following questions:
"l. Do state employees have the right to strike? "2. Is collective bargaining permitted among state employees? "3. Do the policies reflected in the answers to questions l and 2 apply to municipal employees, including school teachers, etc.? "4. Have there been any strikes of public employees in the state of Georgia?"

As you know, State and municipal employees are specifically exempted from the provisions of the National Labor Relations Act. 29 U.S.C.A. 152(2)(3). Accordingly, the answers to your questions are determinable by State law.

Strikes by State employees are prohibited. Ga. Laws 1962, p. 459 (Ga. Code Ann. 89-1301 ). There is no similar provision in the statutes regarding "collective bargaining". The Supreme Court of Georgia has held, however, that a State agency was without authority to enter into an agreement with a third party fixing the terms and conditions of employment of its personnel. International Longshoremen's Ass'n. v. Georgia Ports Authority, 217 Ga. 712, 718 (1962). Whether this prohibition would extend to collective bargaining with the employees themselves, assuming the absence of a third party bargaining agent, is, of course, open to conjecture and would probably depend on the circumstances prevailing at the time the question is raised.

With the exception of policemen, who are prohibited from joining or belonging to any labor union by Ga. Laws 1953, Nov. Sess. p. 624 (Ga. Code Ann. 54-909), I am aware of no statute or case law extending the prohibitions pertaining to State employees to include employees of lesser political subdivisions.

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In answer to your last question, the International Longshoremen's case, supra, arose from a strike by that union at the Georgia Ports Authority docks in Savannah, Georgia. This office has no official knowledge of any other strikes by public employees. We note, however, that the City of Atlanta has recently undergone strikes by its firemen and garbage collectors.

OPINION 68-394 (Unofficial)

September 13, 1968

You inquire as to the reasons for our concurrence with the view of the State Department of Audits that an expenditure of $188.40 by the Hawkins ville City Board of Education for a banquet for honor students was contrary to law.

The foundation upon which our position rests is the long standing rule that the powers of public officers and boards are limited to those defined by law, Ga. Code Ann. 89-903, which rule is of especial force where the action in question is a disbursement of public funds. See Cole v. Foster, 207 Ga. 416, 418 (1950). Freeney v. Geoghegan, 177 Ga. 142(1) (1933). The power of the General Assembly to levy taxes and spend the funds so raised is not a broad power to tax generally, whether exercised by the General Assembly itself or exercised through local political subdivisions to which it has delegated certain taxing authority. This power to tax is restricted by the Georgia Constitution to certain specified purposes. See Art. VII, Sec. II, Par. I (Ga. Code Ann. 2-5501) and Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701) of the Constitution of the State of Georgia of 1945.

Of those enumerated purposes for which tax funds may be raised and expended, it is probably safe to say that the only one which could even arguably be said to be broad enough to cover an expenditure by a county or city board of education for a banquet for honor students is the authorization "for educational purposes." But I am further of the opinion that any argument along this line is itself foreclosed by various decisions of the Supreme Court of Georgia defining the term "for educational purposes," the most recent being the decision holding an

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expenditure in support of the school lunch program not to be an expenditure "for educational purposes." See Wright v. Absalom, 224 Ga. 6 (1968).
The only remaining question would seem to be whether these general rules respecting the taxation powers of the General Assembly have in any way been altered or modified with respect to the Hawkinsville School System through a constitutional amendment of local application. In this regard, I would say that not only am I not aware of any such local constitutional amendment, but on the contrary, have noted that the 1890 Act providing for the Hawkinsville School System, to wit: Ga. Laws 1890-91, Vol. 2, pp. 1020, 1021, expressly provides that the school tax can be used:
"... only for the purpose of establishing and maintaining the public schools of said town." (Emphasis added.)
In the light of the foregoing, we are of the view that the expenditure in question is not one which is authorized by law.

OPINION 68-395 (Unofficial)

September 16, 1968

You requested an opinion relative to whether the State Board of Registration for Foresters has the discretion to require an examination of applicants in every instance, or whether an amendment to the licensing law would be necessary to make an examination a prerequisite to registration in every instance.
Ga. Laws 1951, p. 581, as amended (Ga. Code Ann. Ch. 432A) deals with the State Board of Registration for Foresters. Ga. Code Ann. 43-212a, which sets forth the requirements for registration of applicants, provides, in part, that:

"(a) The minimum qualifications and requirements for registration as a registered forester shall be as follows: (1) Graduation from a school, college or department of forestry approved by the board, and a specific record of an additional two years' or more experience in forestry work of a character satisfactory to the board indicating that the applicant is competent to practice forestry. Such two years' experience need not be obtained on lands owned, leased, rented or held

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by the applicant or by any person, corporation, agency, entity or institution by which such applicant is employed, so long as said applicant works under supervision acceptable to the board. (2) Graduates of schools of forestry not approved by the board may be licensed after two years of experience of a character satisfactory to the board and under the supervision of a registered forester or under other supervision acceptable to the board, and who shall have successfully passed a written examination designed to show knowledge and skill approximating that obtained by graduation from a school, college or department of forestry approved by the board. The board shall issue licenses only to those applicants who meet the require.ments of this section: Provided, however, that no person shall be eligible for registration as a registered forester who is not of good moral character and reputation."
As I understand your inquiry, it involves whether the words "minimum qualifications and requirements" in the above quoted Code Section in effect give the board the discretion to require more of an applicant than is set out tn said Code Section.
My interpretation of the provision relative to qualifications of applicants is that two classes of persons may be registered: (l) Those who have graduated from a school, college or department of forestry approved by the board who have a specific record of an additional two years or more experience in forestry work of a character satisfactory to the board, or (2) persons who are graduates of schools of forestry not approved by the board who have two years of experience of a character satisfactory to the board and who shall have successfully passed a written examination designed to show knowledge and skill approximating that obtained by graduation from a school, college or department of forestry approved by the board. (Emphasis added.)
Although subsections (l) and (2) are not separated by the word "or," it is my opinion that a legislative intention that subsections (l) and (2) are to be considered alternative sets of qualifications for applicants is clear. It is obvious that the requirement of an examination in subsection (2) is designed to compensate for the fact that an applicant qualifying under subsection (2) would have educational qualifications which are less than those required under subsection (1). Therefore, it is my opinion that an examination is

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not requirt:d unless the applicant is a graduate of a school of forestry not approved by the board.
The fact that the statute provides that these are the "minimum qualifications and requirements" does not give the board authority to require qualifications which would have the effect of altering the clear language of the legislature. "Minimum" as used in this sense could not be construed to mean that the board can ignore the Ian guage enacted into Ia w by the legislature. The board's discretion is related to whether the experience of an applicant is satisfactory and whether a school, college or department of forestry should be approved by the board.
In summary, it is my unofficial opinion that an amendment to Ga. Code Ann. 43-212a would be necessary to authorize the State Board of Registration for Foresters to require a written examination of all applicants.

OPINION 68-396 (Unofficial)

September 16, 1968

We have reviewed the Georgia law to determine whether or not the State may provide financial assistance to the Georgia Wing of the Ci vii Air Patrol.

The Civil Air Patrol is a Federally chartered non-profit corporation which also serves as the official auxiliary of the United States Air Force. The Air Force provides surplus equipment, advisors, fuel and oil for actual missions of the Civil Air Patrol but other expenses such as equipment refurbishing and maintenance, training, insurance, administrative salaries and uniforms must presently be provided by private contributions or from the personal finances of the volunteers comprising the Civil Air Patrol.

You advised that the current State budget has no provision for an appropriation to the Ci vii Air Patrol. I have not been able to find any provision of Georgia Ia w which would authorize an appropriation from the Governor's emergency fund to the Civil Air Patrol either by a direct grant or by a contract for services.

It is therefore my unofficial opinion that if the Ci vii Air Patrol desires direct financial assistance from the State government, it

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will have to initiate appropriate legislation authorizing this assistance.

OPINION 68-397 (Unofficial)

September 16, 1968

This is in reply to your letter dated September 6, 1968, as to whether the exemption provided by an amendment to the sales and use tax law, Ga. Code Ann. 92-3403aC(2)(q), (Ga. Laws 1965, p. 13), H. B. 49, is applicable to your business operations.
You state that your Company owns trucks which are operated principally in interstate commerce as common carriers, that they operate pursuant to authority granted by the Federal Government through its agency, the Interstate Commerce Commission, and that the trucks are leased to United Van Lines, Inc. on a 'trip lease basis'. You also state that you furnish all the fuel for the trucks.
The amendment would allow an exemption from the tax on the leasing of trucks as common carriers to be used in interstate commerce to transport passengers or cargo wherein the major portion of such commerce involves the State of Georgia. On the last point the amendment is clear and not ambiguous and therefore not subject to statutory construction. New Amsterdam Casualty Co. v. McFar/ey, 191 Ga. 334, 337, 12 S.E.2d 355 (1940).

The pertinent language of the amendment is as follows:

"Motor vehicles . . . used principally to cross the borders of the State of Georgia in the service of transporting cargo by common carriers in interstate commerce. . . ."
Therefore the exemption would apply to your operation only if the trucks are used more often than not in crossing the borders of Georgia while, of course, engaged in interstate commerce. If this is the case, then the lease price would not be subject to the tax.

With respect to the fuel which you firnish for these trucks there is an 'exemption' within the foregoing exemption. The provision states:

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"In lieu of any tax under this Chapter which would apply to the purchase, sale, use, storage or consumption of the aforesaid tangible personal property, except for this exemption, the tax under this Chapter shall apply with respect to all fuel purchased and delivered within this state by or to the aforesaid common carriers and all fuel purchased outside this state and stored in this state irrespective, in either case, of the place of its subsequent use."
Thus, the purchase of fuel within Georgia to be used for operating the trucks would be subject to the tax. Fuel bought outside Georgia but stored in Georgia for the operation of the trucks would also be subject to the tax.

OPINION 68-398 (Unofficial)

September 17, 1968

You present the following factual situation:

"A person received a determinate sentence that states it is to run concurrent with a sentence in another case that is probated. The issue has been raised that since this determinate sentence was to run concurrent to a probated sentence it would also be served on probation."

The question is whether or not a prisoner is to serve a term of years in prison pursuant to a sentence which is supposed to run concurrently with a sentence which is probated. A sentencing judge has the power to place certain defendants on probation. Ga. Code Ann., 27-2502, 27-2527, 27-2709. Sentencing judges are authorized to mold sentences so as to provide for probation. Probation is not a right; it is a privilege. Johnson v. State, 214 Ga. 818 (1959). Unless the judge expressly states in his order that he is placing the defendant on probation, the defendant receives the sentence which is prescribed. It appears to me that the prisoner in this case was not given a probated sentence as to both sentences; and that he must serve the determinate sentence in whatever facility is appropriate to his case.

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OPINION 68-399 (Unofficial)

September 18, 1968

You requested the views and objections, if any, of the Department of Law as to whether a certain group of farmers should be permitted to take credit for the overpayment of certain voluntarily paid ad valorem tax assessments in which an arbitrary, fixed, mathematical formula was used to compute the increase in market value resulting from tobacco allotments running with the farms, when, subsequently, other farmers having received a similar assessment successfully maintained an injunction to prevent the collection of such tax assessments.

The answer to this question lies in the interpretation and construction of two Georgia Code Sections which are set out below:
"20-1007 (4317) Voluntary payments; recover back.- Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and cannot be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule. (49 Ga. 457; 50 Ga. 305, 68 Ga. 123.)"

and
"92-3812. (526) County tax may be remitted.-ln all cases where a person has been overtaxed or claims for any reason that taxes should be remitted or refunded, the ordinary or other county authority empowered to levy taxes may hear and determine such application to the extent of the interest of the county therein. (Act 1845, Cobb, 1077. )"
The "voluntary payments" Code section has received the courts' attention many times but the requirements necessary for a recovery back are probably most clearly expressed by Judge Speer in The First National Bank of Americus v. The Mayor of Americus,63 Ga.119,at 122,123 (188l),whenhestated:

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'Three elements are essential, and must concur, to sustain an action to recover back money on the grounds of an illegality of the tax:
"First. The authority to levy the tax must be wholly wanting.
"Second. The money sued for must have been actually received by the defendant corporation.
"Third. The payment of the plaintiff must have been made upon compulsion, to prevent the immediate seizure of his goods or the arrest ofhis person, and not voluntarily made.
"unless these conditions concur, paying under protest will not give a right to recovery." (Emphasis by the Court).
At first blush, the last above quoted Code Section would seem in conflict with the "voluntary payment" rule but the court in Harrison v. Southern Railway Co., 44 Ga. App. 49, 52 (1931) seemed to have put this section in its proper perspective when it said:
"The section might, perhaps, be interpreted as imposing upon the ordinary some clerical or ministerial duty as to correcting errors in regard to taxes. . . ."
Therefore, it would seem clear that when the above judicial interpretations are applied to the factual situation under consideration the "voluntary payment" rule is controlling and the county commissioner cannot allow a setoff under the law as it now stands.

OPINION 68-400 (Unofficial)

September 19, 1968

This is in reply to your letter requesting my unofficial opinion regarding the status of the rights of the Highway Department and Miller County under a right-of-way deed executed by a land owner to Miller County and the effect of an undated collateral agreement bet ween the Grantor and a County Commissioner reserving to the Grantor certain rights in the property.

First of all, a brief review of the facts is necessary to understand the reason for this question. On May 20, 1968, the Grantor executed a right-of-way deed to Miller County which was witnessed and attested by a Notary Public. This deed conveys to

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the county a portion of the Grantor's land which was specifically and explicitly described in a plat depicting the right-of-way through the Grantor's property which was referred to, attached and incorporated by explicit reference in the deed. On August 26, 1968, the Executors of the estate of the Grantor gave notice to the County Commissioners of Miller County and to the State Highway Department that they were relying on an undated written agreement which was purportedly executed and signed by the Grantor and one of the County Commissioners from Miller County. This agreement reads in part:
"It is understood that no shrubbery, trees or houses will be upset on the lands of the undersigned land owner in front of houses."
The Executors of the estate of the Grantor now seek to enforce this agreement and threaten legal action if the State Highway Department and Miller County do not comply. Your question then is whether or not this undated collateral document affects the State Highway Department and Miller County's rights under the before-mentioned right-of-way deed.
It is my unofficial opinion that Miller County is the absolute owner of the right-of-way described in the right-of-way deed dated May 20, 1968, and holds this described property in fee simply absolute pursuant to this deed. Furthermore, the undated collateral document is insufficient in form to act as a reservation or an exception of any rights to the Grantor. Finally, there is absent in either of these documents the necessary references which would incorporate this collateral document as a part of the rightof-way deed.
The requisites of a deed to land are set forth in the provisions of Ga. Code Ann. 29-101, which reads in part:
"A deed to lands must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser, or someone for him, and made on a valuable or good consideration . . . ."
After careful review and consideration of the right-of-way deed in question, it is concluded that this right-of-way deed appears valid on its face and complies with the requisites set forth above. In comparison, however, the purported agreement under which the Executors of the Grantor attempt to claim certain reserved rights

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in this property fails to meet any of these requisites. The only possible argument that could be made is that this purported agreement was executed at the same time of the right-of-way deed and is to be interpreted in conjunction with the rights of each party under the right-of-way deed. However, in order to incorporate this purported agreement as part of the right-of-way deed, there must be some specific reference in the right-of-way deed which will identify this document and thereby incorporate it as part of the right-of-way deed. See generally, 26 C.J.S. Deeds, 101, p. 889. In surveying both the right-of-way deed in question and this purported agreement, it can be seen that at no point in either document can there be found any reference which would tend to provide a nexus for the two documents or to identify the separate agreement as an attempted incorporation unto the right-of-way deed.
Furthermore, it is a general principle of Georgia law that unless specifically excepted, a deed to land includes all structures permanently affixed thereto which constitute a part of the realty. See 8 Encyclopedia of Georgia Law, Deeds, 162; Ga. Code Ann. 85-201 and 85-105. If this agreement is to constitute an exception reserving to the Grantor the shrubbery, trees and buildings along the described right-of-way, not only must this agreement be incorporated into the original right-of-way deed, but also the description of the property excepted or reserved in the deed must be so dfinite and explicit that it can be located. If the description of the property excepted or reserved in a deed is so deficient that it cannot be located, the exception or reservation falls. See Clay v. Smith, 215 Ga. 668 (1960). See also 8 Encyclopedia of Georgia Law, Deeds, 163 and 164.
Therefore, it is concluded that this purported agreement has no legal effect on the right-of-way deed executed in favor of Miller County; that the right-of-way deed itself fails to incorporate this agreement; and the agreement itself fails to meet the requisites to establish an exception or reservation to the Grantor. Thus, it is concluded that this agreement is merely a collateral paper and the State Highway Department and Miller County can rely on the title granted to them under the right-of-way deed dated May 20, 1968.

OPINION 68-401 (Unofficial)

567 September 20, 1968

You ask if this office still agrees with Opinion 67-425 concerning the compensation of the Tax Commissioner of Cook County.

The question presented in the opinion with which you are concerned is as follows:

"Is the tax commissioner entitled to receive 10% commission on collections after 90% of the net digest has been collected on school tax?"

This office answered the question in the negative and further replied that the provisions of Ga. Code Ann. 92-5304 relating to commissions on taxes collected in excess of a certain percentage of the net tax digest do not apply to the school tax digest.

The opinion has been reviewed and, in my opinion, it is correct.

Perhaps some of the confusion emanates from the statement in your letter that "of course, all of our taxes making up the net tax digest include the school tax digest." It should be pointed out that the digest for State and County taxes and the digest for school tax purposes are not the same. Ga. Code Ann. 32-1401 provides that the county board of education is charged with the responsibility of preparing the school tax digest and furnishing the same to the tax collector of the county. Ga. Code Ann. 32-1106 provides for the payment of commissions to a tax collector in the collection of school taxes. However, under the 1967 Act (Ga. Laws 1967, p. 2512) placing the Tax Commissioner of Cook County on a salary the commissions received under Ga. Code Ann. 32-1106 shall be paid into the County Treasury.

In summary, commissions provided for in Ga. Code Ann. 92-5304 apply only to the State and County Tax Digest and not to the School Tax Digest. See Board of Education of Decatur County v. Drake, 157 Ga. 8 (1923), and Hurst v. Board of Commissioners of Burke County, 157 Ga. 648 (1924).

OPINION 68-402 September 20, 1968
This is in reply to your request for my opinion on the following question:

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"Is a person who has been nominated in the September 11, 1968, General Primary, as a member of the County Board of Education, eligible to run in the November 5, 1968, General Election and qualified to hold the office if elected, if he is a member of the Board of Registrars?"
Ga. Code Ann. 34-605 provides in pertinent part as follows:
"No person, while serving as a registrar or deputy registrar or within a period of six months after so serving, shall be eligible to any nomination or office to be voted for at a primary or election, provided, however, that this ineligibility shall not apply to a tax commissioner or tax collector, or to any candidate for such office of tax commissioner or tax collector." (Emphasis added.)
From your question, it does not appear that the exception to ineligibility relating to a tax commissioner or tax collector is applicable in this instance.
You will note that a registrar or deputy registrar is not eligible to "nomination or office". Thus, it does not appear to me that the provisions of Ga. Code Ann. 34-1003 relating to substituted nominations would be applicable.
OPINION 68-403 September 20, 1968
This will acknowledge receipt from you of a letter, with enclosures, from Frank G. Etheridge, President, Etheridge and Company, Inc., addressed to you in regard to land syndications under Georgia Securities Act of 1957. This will also acknowledge the receipt of a car bon copy of a letter containing a general description and discussion of the land syndications giving rise to the inquiry as to whether said land syndications are securities within the Georgia Securities Act of 1957.
In Ga. Code Ann. 97-102(i) a security is defined for the purposes of the Georgia Securities Act of 1957 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

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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, temporary or interim certificate of interest or participation in, or warrant or right to subscribe to, convert into or purchase, any of the foregoing.
Pursuant to Ga. Code Ann. 97-104 it is provided that:
It shall be unlawful to sell or offer to sell any securities within this State, except those exempt under section 97-106 or those sold in transactions exempt under section 97-I 07, until registration of such securities shall have become effective by notification under subsection (a) or by qualification under subsection (b) of this section.
Thus, if the interests in the land syndications in question fall within the above-stated definition of a "security," and the same are not exempt under Ga. Code Ann. 97-106 or sold in a transaction which is exempt under Ga. Code Ann. 97-107, registration of said securities is required. Additionally, your attention is called to Ga. Code Ann. 97-105 wherein it is provided 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 97 ~ 107 unless he is registered as a dealer, limited dealer, salesman or limited salesman pursuant to the provisions of this section.
For definitions of the terms "dealer," "limited dealer," "salesman," or "limited salesman," your attention is called to Ga. Code Ann. 97-102(b}, (c), (g), and (h) respectively.
Therefore, if the instruments in question fall within the definition of a "security" as contained in the Georgia Securities Act of 1957, as amended, the same must be registered, unless exempt, prior to being sold or offered for sale. Additionally, those above-enumerated persons must register prior to offering for sale or selling any of such securities.
From the information received from your office as well as the letter from Mr. Boozer, the following facts concerning the land syndications in question have been ascertained. In order for small investors to take advantage of the increase in the value of real

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estate arising from the expansion of Atlanta and surrounding area, syndicates have been organized so that these small investors may jointly achieve the same benefits achieved by larger single investors. By pooling their resources, the small investors are able to acquire tracts of land, the acquisition of which would be impossible for any of said investors individually.
In 1966, a Georgia corporation was organized and incorporated under the name of Mutual Land Fund, Inc., (hereinafter referred to as "MLF") with its principal office in DeKalb County, Georgia. This corporation utiiizes the knowledge and experience of its personnel to inquire about and to make acquisitions of various tracts of real property in the Atlanta metropolitan area. According to the information from Mr. Boozer, MLF has only two (2) stockholders.
Upon locating a desirable parcel of land, the corporation enters into a contract to acquire the land in the name of the corporation and then the corporation endeavors to find a group of small investors, which, according to the information from Mr. Boozer, is never more than twenty, who are interested in purchasing an undivided interest in the particular land and holding it as tenantsin-common.
It is not entirely clear from the available information whether MLF actually purchases the property and then sells it to the investors or merely enters into a contract to purchase and the investors purchase that contract from the corporation and then exercise the contract to purchase. However, for the purpose of this opinion, either procedure may be assumed.
The small investors are acquired through the efforts of the personnel of MLF largely by word of mouth through friends and acquaintances of friends. As I understand it, the small investors are also obtained through a solicitation dinner to which the personnel of MLF invite their friends and previous investors who, in turn, are urged to bring with them a friend. At this dinner, the personnel of MLF explain the tract or parcel of land the purchase of which is contemplated.
Additionally, it is my understanding that a brochure similar to the brochure enclosed with Mr. Boozer's correspondence is distributed which gives a rather extensive report on the tract of land under consideration. Also, information concerning the

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surrounding area and its potential for growth and increase in value is given to the prospective investors. Those interested in investing are invited to contact MLF personnel.
Next, it appears that MLF acquires the number of small investors desirable for syndication. Each investor enters into a syndication agreement whereby each individual investor agrees to contribute a proportionate share of the down payment for the purchase of the tract of realty and also agrees to contribute his proportionate share of the taxes and other expenses which will be necessary in holding the parcel of land, which includes the annual payments to the seller on a purchase money mortgage. As I understand it, the seller of the tract of realty is given a down payment, usually less than one-third of the purchase price, and a purchase money mortgage for the balance is given by the members of the syndicate.
According to the syndication agreement enclosed with Mr. Boozer's letter, the syndication managers are stated in the syndication agreement and are identical to the two (2) stockholders of MLF.
Additionally, said syndication agreement provides that "the syndicate managers or either of them, may become members of the syndicate upon the same terms as any other syndicate member." Therefore, the managers are not of necessity members of the syndicate, nor do the syndicate members designate the managers except at the time they enter into the syndication agreement. Also by the .syndication agreement such syndicate member waives "any and all right to partition of the Syndicate Property, or any part thereof," and also agrees not to "make application to or petition any court for a partition at Ia w or in equity of the Syndicate Property, or any part thereof." The syndicate managers, pursuant to the syndication agreement, are to serve without compensation in managing the syndicate property.
Mr. Boozer states that "in any syndication put together through the efforts of MLF, the land is always raw land that has not been improved or developed in any way and does not throw off any income." Furthermore, it is reported that the co-owners continue to hold the land in its raw state without any effort at all to develop and improve it or to otherwise earn income from it. Also, according to Mr. Boozer, the co-owners' "only purpose and

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intent is to hold the raw land awaiting its anticipated appreciation in value c. Lie to the passage of time and growth of Atlanta."
Irrespective of the intent and purpose of the co-owners, the available copy of the syndication agreement provides that the syndication has as its purpose and function a much wider range of possible activities. In the syndication agreement, it is stated that "a syndicate is hereby formed for the purpose of owning, operating, leasing and otherwise maintaining the syndicate property and engaging in the operations and business as may be deemed necessary or proper to such purpose." Also, in Section 9 of the syndicate agreement, management is provided as follows:
The Syndicate Members shall consult together with respect to the management, operation, maintenance, development, leasing and other disposition of the Syndicate Property. In the case of disagreement, the decision of the Syndicate Members holding at least 51 per cent of the total interests in the Syndicate Property shall control. The Syndicate Managers shall act jointly and severally on behalf of the Syndicate Members in collecting the rents and issues, and other proceeds from the Syndicate Property and in disbursing, in accordance with these presents funds necessary to pay the Purchase Money Note installments on the Syndicate Property and expenses incurred as the result of the management, operation, maintenance, and the leasing or other disposition of the Syndicate Property.
Thus, from the syndication agreement, it appears that the syndicate would be within its powers to utilize the tract of land in any way in which 51 percent of said members concur. This would include not only the holding of the land in its raw state, but also the developing, leasing, or renting of such property so as to cause said property to produce an income for the tenants-incommon.
According to information from Mr. Boozer as to the actual activity of the syndication, "the syndicate does not engage in any sort of activity or operation or enterprise-it is really nothing more than a convenient way to acquire and hold raw land, without any attempt to develop or improve it until someone else comes along who wants to purchase it at a profit to the co-owners, and the development or improvement of the property is left to such purchaser."

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However, as provided in the actual syndication agreement, the syndicate members could, by so choosing, utilize the land for development or improvement and thus cause such property to become income producing to the syndicate members. Additionally, although it is stated that the co-owners " . . . have full possession and right to use and enjoy the property," it does appear that the syndicate managers have sufficient authority to manage and collect rents or income from any development or leasing of said property, if the syndicate membership chooses to pursue such a course.
With the above facts in mind, it is necessary for us to turn to an interpretation of the Georgia Securities Act of 1957 and determine whether or not the instruments or transactions, as hereinabove described, come within the definition of a "security" so as to be subject to the Georgia Securities Act.
When determining whether a particular instrument or transaction comes within the definition of a "security," it is necessary to consult cases decided under the Federal Securities Act since there is not a sufficient number of Georgia cases interpreting the Georgia Act on which to base an opinion.
In the Federal Securities Act of 1933, (15 U.S.C. 77b[l]) the term "security" is defined as follows, which is similar to the Georgia definition:
(I) The term 'security' means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, votingtrust certificate, certificate of deposit for a, security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a 'security', or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
In regard to instruments and transactions dealing with land, the first case which must be consulted is SEC v. C.M. Joiner Leasing Corporation, 320 U.S. 344 64 S.Ct. 120, 88 L.Ed. 88 (1943), wherein Joiner sold instruments which purported to be

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assignments of leaseholds to certain portions of a 3000-acrc tract of land in Texas which Joiner had acquired by assignment. There was a possibility of oil on these tracts. The size of the tracts covered by the leaseholds varied from 2 1/2 to 20 acres. The purchaser had no choice as to the location of the tract for the promoters selected and chose the tracts for the purchaser. In promotional materials representation was made that a test well was being drilled and the impression was given and intended that investors would make a profit through a well being brought in by someone else. The court said iD holding that the instruments and transactions came within the securities definition that:
Their promotion was to sell documents which offered the purchaser a chance, without undue delay or additional costs, of sharing in discovery values which might follow a current exploration enterprise. The drilling of this well was not an unconnected or uncontrolled phenomenon to which salesmen pointed merely to show the possibilities of the offered leases. The exploration enterprise was woven into the leasehold, in both an economic and a legal sense; the undertaking to drill a well runs through the whole transaction as the thread on which everybody's beads were strung . . . .
The court held the instruments to be an "investment contract" and within the definition of a "security" under the Federal Act.
In 1946, three years after the Joiner decision, the United States Supreme Court held another type of transaction involving real estate an "investment contract" and thus a security within the federal securities act. In SEC v. WJ. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L. Ed. 1244, 163 A.L.R. 1043 (1946), two Florida corporations under common control and management offered for sale tracts of a citrus development and a service contract to cultivate, market, and manage the groves. The court held these to be "investment contracts" and stated:
In other words, an investment contract for purpose of the securities act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is lead to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interest in the physical assets employed in the enterprise. Such a definition necessarily underlies this court's

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decisio11 in SEC v. Joiner Corp. 320 U.S. 344, and has been enunciated and applied many times by lower federal courts. It permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issuance of the many types of instruments that in our commercial world fall within the ordinary concepts of a security. H. Rep. No. 85 73rd Congress 1st Sess. p. 11. It embodies a flexible rather than static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.
It should be noted that the Supreme Court looked beyond the actual instruments involved to the total circumstances surrounding the transactions. The Court also stated in conclusion that the land sales contracts, warranty deeds and service contracts formed "investment contracts" and that same were " ... unaffected by the fact that some purchasers chose not to accept the full offer of an investment contract by the client in and to a service contract with the respondents. The securities act prohibits the offer as well as the sale of unregistered, nonexempt securities. Hence, it is enough that the respondents merely offer the essential ingredients of an investment contract."
Your attention is also called to Securities Act of 1933, Release No. 4877, August 8, 1967, wherein it was jointly decided by the Securities and Exchange Commission, and the Maryland, Virginia and District of Columbia Securities Commissioners, that the nor mal Real Estate Syndications are "securities" within the Federal and State Acts.
In describing the nature of the syndication agreement, the release stated that:
In other words, the investor provides the capital and shares in the risk and the profits; the promote! or third party manages, operates and controls the enterprise, usually without active participation on the part of the investor.
The release continued by concluding that:
The investor's interest in the enterprise may be evidenced by formal certificates or by part ownership of the assets used in the enterprise. In determining what is an investment contract, substance and economic reality prevail over the form of the

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transaction involved. Interests in novel and unconnnon ventures fit the broad definition of an 'investment contract.'
With the above cases and release in mind, and in view of the latitude allowed the syndicate under the above-described syndicate agreements as to the use of the property and the authority of the managing partners, it is my opinion that the above-described syndicate agreements combined with the property deeds are securities within the Georgia Securities Act of 1957, as amended.

OPINION 68-404 (Unofficial)

September 23, 1968

You have as ked whether the fallowing quotation from Rules and Regulations 270-5-24-.02, pertaining to Air Quality Control, means that the filing of the reports therein provided for is voluntary unless directed by the Department after notice and hearing. The subject provision is:

"The requirement for filing of such reports shall be conditional upon either the consent of the person engaged in operations which may result in air pollution, or the direction of the Department, which direction may be issued only after a hearing upon notice to the person engaged in such operation."

As you perhaps have noticed, that language was taken almost verbatim from the Georgia Health Code. Ga. Code Ann. 88903 (a)(2).

I am of the opinion that your question should be answered in the affirmative based upon the express terms of the above-quoted provision.

OPINION 68-405 September 23, 1968
This is in reply to your Jetter requesting an official opinion on the following questions:
"(I) May lending institutions charge 7 percent per annum simple interest on personal loans made by the lending institution?

577
"(2) If a lending institution makes a loan to a student who is otherwise eligible under the Georgia student loan program to have his loan guaranteed by the Corporation, do state laws permit the Corporation, the guarantee agency, to guarantee the loan if the interest rate thereon is 7 percent per annum simple interest?"
Turning to your first question, the maximum rate of interest on personal loans in Georgia is 8 percent. Ga. Code Ann. 57-101. Accordingly, it would appear that the answer to your first question is, "yes".
Turning to your second question, it is clear that the Corporation is prohibited from guaranteeing any loan which shall obligate the borrower to pay interst at a rate in excess of 6 percent per annum. Ga. Laws 1965, pp. 217, 222; 1968, pp. 387, 390 (Ga. Code Ann. 32-3307(a)]. It is also clear, however, that the Corporation is authorized to pay an additional 2 percent interest which is not an obligation of the borrower. Ga. Laws 1965, pp. 217, 222; 1968, pp. 387, 390 [Ga. Code Ann. 32-3307(b)]. Additionally, the Act provides that the Corporation is authorized to accept funds from the federal government in the maximum amounts made available and, in the event that any of the provisions of the Georgia Law are construed as to prevent such acceptance, such provisions shall be deemed suspended and of no force and effect for such period of time as is necessary to received, accept, and disperse the federal funds. Ga. Laws 1965, pp. 217, 221; 1968, pp. 387, 389; Ga. Code Ann. 32-3305(9)(e)(g). Thus, the question becomes whether the provisions relating to federal funds are sufficient to overcome the express limitation of 6 percent interest found in Ga. Code Ann. 32-3307 (a).
A cardinal rule of statutory construction 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). Applying such principle to the laws creating the Corporation, I think it is clear that the intention of the General Assembly was primarily to assist persons wishing to improve their educational opportunities to meet the expenses of such higher education. Ga. Laws 1965, pp. 217, 218 (Ga. Code Ann. 32-3302). Thus the General Assembly limited the obligation of the borrower to 6 percent in Ga. Code Ann. 323307 (a), while authorizing an additional 2 percent interest, not an

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obligation of the borrower, to be paid by the Corporation, pursuant to Ga. Code Ann. 32-3307(b). Under these circumstances, I believe that the General Assembly clearly intended that the procurement of federal funds be secondary to the interest of the student borrower. Consequently, I do not believe that the law presently permits the Corporation to guarantee a loan to a student when that loan obligates the student to pay interest in excess of 6 percent.
0 PINI0 N 68-406 September 23, 1968
You request clarification of the above-referenced section of the Georgia Surface Mining Act of 1968, and specifically request my official opinion regarding the following questions:
1. Does Section 12, Georgia Laws 1968, pp. 9, 19, relieve an operator who is engaged in surface mining and who contracts to construct, repair or maintain public roads from the other provisions of the Georgia Surface Mining Act of 1968 insofar as his total mining operation is considered?
2. Does this section, supra, relieve an operator engaged in surface mining who subcontracts to supply a general contractor with materials to construct, repair or maintain public roads from the other provisions of the Act?
OPINION
It is my official opinion that an operator who contracts with the State Highway Department to construct, repair or maintain public roads is relieved of the other provisions of the Georgia Surface Mining Act of 1968 by section 12 thereof, but that this exemption is limited strictly to those operations which are carried out in performance of that particular contract.
Additionally, it is my opinion that the exemption granted by section 12, supra, extends only to those operators who contract directly with the State Highway Department and not to parties who are subcontractors of such operators.
DISCUSSION
Section 12 of Ga. Laws 1968, pp, 9, 19 provides:
"The provisions of this Act shall not apply to surface mining

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activities of the State Highway Department incident to its activities in constructing, repairing, and maintaining the public road system in Georgia. The provisions of this section shall also extend to any person, firm, or corporation contracting with the State High way Department to construct, repair or maintain public roads; provided such contracts contain standards for the reclamation of the affected surface mining area and provided further that such standards have been approved by the Surface Mined Land Use Board."
l. Although literal construction of this section would exempt "... any person, firm, or corporation contracting with the State Highway Department to construct, repair or maintain public roads . . . ," it has long been the rule that the courts will not apply the words of a statute in their strict literal sense where the result would be to frustrate or defeat the manifest intent of the legislature in its enactment of the law. E.g. State v. Alexander, 54 Ga. App. 295, 297 (1936). Here it would seem obvious that the General Assembly did not intend to frustrate the comprehensive purposes of the Georgia Surface Mining Act, as expressed in Section 2 thereof,1 by exempting from regulation all operators in
1. Section 2 provides in pertinent part:
"(I) to assist in achieving and maintaining an efficient and productive mining industry and increasing economic and other benefits attributable to mining;
"(2) to advance the protection of fish and wildlife and the protection and restoration of land, water and other resources affected by mining;
"(3) to assist in the reduction, elimination or counteracting of pollution or deterioration of land, water and air attributable to mining;
"(4) to encourage programs which will achieve comparable results in protecting, conserving and improving the usefulness of natural resources to the end that the most desirable conduct of mining and related operations may be universally facilitated;
"(5) to assist in efforts to facilitate the use of land and other resources affected by mining so that such use may be

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all phases of their overall mining activities simply because they have a contract with the Highway Department which might well represent only a very small portion of their total mining operations.
2. Since the subcontractor furnishing materials to the prime con tractor ordinarily does not contract directly with the State Highway Department, it is my opinion that this section, generally speaking, would not exempt such subconstractors. An exception might exist, however, where the subcontract allows the State Highway Department a sufficient nexus with the subcontractor to enforce, as to the subcontractor, the reclamation standards defined in the prime contract and approved by the Surface Mined Land Use Board (such approval being a requisite to all exemptions provided for by Section 12).
OPINION 68-407 September 24, 1968
You request my official opinion regarding the legality of drilling on private land with the permission of the landowner but at State expense.
Upon receipt of an application to lease mineral rights upon State lands, the Director of the Department of Mines, Mining and Geology may cause an inspection of the land sought to be leased to be made, including such geophysical and geological surveys thereof as may be ordered by the Mineral Leasing Commission. Ga. Laws 1945, pp. 352, 354, as amended (Ga. Code Ann. 91122). Where a competent evaluation of the prospective leasehold requires drilling on surrounding private lands, it is my official opinion that the sa me may legally be accomplished at State expense.
That some incidental benefit may be derived therefrom by the private landowner through revelation of geologic data does not offend the constitutional prohibition against gratuities (Georgia Constitution Art. VII, Sec. I, Par. II), since the permission of the landowner for the State to enter on and drill his land is consideration sufficient to constitute the quid pro quo required in public contracts.
consistent with sound land use, public health and public safety, and to this end to study and recommend wherever desirable, techniques for the improvement, restoration or protection of such land and other resources."

OPINION 68-408

581 September 24, 1968

This is in response to your request for my official opinion as to the proper procedure to be followed where a person qualifies to seek nomination in a general primary, without opposition, and dies approximately five days before the primary.

You have ad vised that on Thursday, September 5, Donald Herring, who had qualified with the Republican Party for a seat in the General Assembly representing the 75th House District, Post 2, and who was without .opposition, was killed in an automobile crash and that the party reopened qualifying and that Mr. Leon Floyd qualified on or about September 6.

As you are aware, Ga. Code Ann. 34-802 and 34-103(m) fix the General Election as the Tuesday following the first Monday in November in each even-numbered year next preceding the expiration of the office holder's term of office. Ga. Code Ann. 34-80 I provides that:

"Whenever any political party shall hold a primary to nominate candidates for public offices to be filled in the ensuing November election, the same shall be held on the second Wednesday in September in each even-numbered year."

This September primary held in even-numbered years is a general primary [Ga. Code Ann. 34-103 (h)]. The Code defines special election and special primary as follows [Ga. Code Ann. 34-l03(ab)]:

"The words 'special election' shall mean an election that arises from some exigency or special need outside the usual routine; and the words 'special primary' shall mean a primary that arises from some exigency or special need outside the usual routine."

Ga. Code Ann. 34-1006 provides in pertinent part as follows:

"In the case of a general primary the candidates shall qualify at least 90 days prior to the date of such primary, but not more than 135 days prior to the date of such primary. In the case of a special primary, the candidates shall qualify at least 15 days prior to the date of such primary. The Executive Committee or other rule rnaking body of the party shall fix

582
the qualifying date within the limitations provided in this Section."
This year the limits specified by this section for qualifying for the general primary, as noted in your April 18, 1968, Election Calendar, were April29 to June 12, 1968.
Ga. Code Ann. 34-1001 (b) provides in part that:
"Each candidate for federal or state office, or his agent, desiring to have his name placed on the ballots, shall file notice of his candidacy, giving his name, residence address and the office he is seeking, in the office of the Secretary of State at least forty-five days prior to the election in the case of a general election and at least fifteen days prior to the election in the case of a special election. . . ."
For the November Election, a general election in any event, the filing deadline was September 20. Even if a special primary could be held under the circumstances you have described (but see Ga. Code Ann. 34-801, supra), in order to meet the filing deadline, it would have been necessary to hold such special primary not later than September 19, and to have qualified therefor at least 15 days prior thereto (Ga. Code Ann. 34-1006), on or before September 3. In order to have held a special primary on the date prescribed by Ga. Code Ann. 34-801, it would have been necessary to close qualification at least 15 days prior thereto, or on August 26.
As you know, the general primary was held on September 11. Once the primary is held, if the nominee dies, the party can make a substitute nomination under Ga. Code Ann. 34-1003. The Election Code does not authorize substitutes for candidates, only nominees.
Thus, under the clear provisions of Ga. Code Ann. 34-1006 ("In the case of a general primary the candidates shall qualify at least 90 days prior to the date of such primary.... The Executive Committee or other rule making body of the party shall fix the qualifying date within the limitations provided in this Section."), there is a gap in our law from August 26 to September 11, in order to provide the time necessary to print ballots, etc. This time gap as to the death of a candidate perhaps could be eliminated by the General Assembly or even a court, but I am without the power to re-write the clear provisions of law.

583
On ~he other hand, the General Assembly may not view this as a gap in the law. The office can still be filled at the general election by write-in votes, for which the legislature has provided [e.g. Ga. Code Ann. 34-1103(b)(3)], and if it is not filled at the general election by write-in votes, then there is provision for a special election. Ga. Code Ann. 34-1515. See also Ga. Code Ann. 34-805.
From another request submitted to me, I am advised that a similar situation exists in at least one other county, to wit: Effingham, and by copy of this letter I am so ad vising them (Opinion 68-409).
It should be noted that the DeKalb Republicans contacted this office on September 6 and were informed that Ga. Code Ann. 34-1006 did not authorize the reopening of qualifications, yet they nevertheless proceeded to reopen them. This office was then and is now unable to re-write the law for convenience.

OPINION 68-409 (Unofficial)

September 24, 1968

This is in response to your request for opinion concerning the matter described below.

You have stated the facts to be as follows:

"The Democractic Party in Effingham County accepted qualifying fees from two candidates for a County Commission Post before the June 12th deadline. In July the Democratic Executive Committee disqualified both candidates on the basis of being non-property owners in Effingham for the five preceding years. The removal of these two men resulted in no candidate being qualified for this post and it was not listed on the ballot in the Democratic Primary of September 11th. Thus no nomination was made. After the Primary the Democratic Executive Committee appointed a man as the Democratic candidate and will place his name on the Democratic ticket in the November General Election."

Enclosed for your information is a copy of Opinion 68-408. In the Opinion you will note that the duly qualified candidate died prior to the primary. The facts you have described are similar in that no candidate was nominated in the primary.

584
As you will note from the enclosed opm10n, ua. Code Ann. 34-1003 authorizes the making of substitute nominations, but does not authorize substitutions for candidates. Your attention is directed to the phrases "Any vacancy happening in any party nomination" and "after nomination" occuring in subparagraphs (a), (b) and (c) of Ga. Code Ann. 34-1003.

OPINION 68-410 (Unofficial)

September 25, 1968

This is in reply to your letter requesting information concerning the sale of abandoned motor vehicles for storage costs.

Whenever the name of the person who abandoned such vehicle is unknown there must be a compliance with Ga. Code Ann. 68-432a(c), which provides:

"Garage operator's report.-An operator of a place of business for garaging, repairing, parking or storing vehicles for the public in which a vehicle remains unclaimed for a period of 30 days, shall, within five days after the expiration of that period, report the vehicle as unclaimed to the commissioner. A vehicle left by its owner whose name and address are known to the operator or his employee is not considered unclaimed. A person who fails to report a vehicle as unclaimed in accordance with this subsection forfeits all claims and liens for its garaging, parking or storing."

If motor vehicles are abandoned where such vehicles constitute an obstruction to traffic, any police officer or highway patrolman may remove such vehicle to the nearest garage or other place of safety. Ga. Code Ann. 68-1669.

Whenever a lien for stoarage costs is created in a motor vehicle the lien may be enforced and the vehicle sold in accordance with the statute which creates the lien. However, if the vehicle is subject to a prior perfected security interest such security interest will take priority over all storage liens, and the sale of a vehicle for storage costs will not divest the lien created by the security agreement. Ga. Code Ann. 109A-9-310.

One possible exception to this rule is the sale of a motor vehicle pursuant to Ga. Laws 1968, p. 197. This Act provides that an automobile wrecking company may after advertisement sell a

585
vehicle, the owner of which is unknown, if it has been in his custody for six months, custody of the vehicle having been obtained by covenant or order of law enforcement officials. Sale of a motor vehicle in accordance with this Act will apparently divest the vehicle of all other liens. It should be noted, however, that this Act applies only to those vehicles which do not exceed $100.00 in retail value according to the current "Red Book" or "Blue Book" used by automobile dealers in establishing the value of automobiles.

OPINION 68-411 (Unofficial)

September 25, 1968

You have asked me whether an elector, when voting for a writein candidate, must also write in the office for which the write-in candidate is running. Further, you wish to know whether, when voting for a write-in candidate, the elector must spell the candidate's name exactly as recorded by the candidate for the vote to be counted for that candidate.

The Election Code provides:
" . . . To vote for a person whose name is not on the ballot, manually write his name, accompanied by the title of the office in valved, in the write-in column." (Emphasis added.) Ga. Code Ann. 34-1103 (b).
It is my opinion that the above language clearly requires that when an elector votes for a write-in candidate, the elector must also manually write in the title of the office for which the elector is voting. In arriving at this opinion, I am not unmindful of a prior unofficial opinion dated October 29, 1964, which might be construed as inconsistent with this opinion and that previous unofficial opinion is hereby rescinded.

The Election Code requires that certain officers be elected in the November election next preceding the expiration of their term of office. Ga. Code Ann. 34-802. The above opinion does not mean that in the event no candidate qualifies (pursuant to Ga. Code Ann. 34-1001) for an office which must be filled at the
election, the ballot may not show that fact. Where no candidate
of either party nor an independent qualifies for an office to be filled at a general election, it would be my suggestion to print the

586
title to the office on the ballot and then note under the title in each party's column that there is no candidate for that office. For example:
REPUBLICAN PARTY For Governor No Candidate DEMOCRATIC PARTY For Governor No Candidate WRITE-IN CANDIDATES
This should avoid a vacancy in the office. However, when writing in a candidate's name in this instance, the elector should not forget to write in the write-in column and also manually write in the title to the office.
I do not believe that your second question can be answered by a general statement as each case must be decided on its own set of facts. The Election Code requires that the poll officers and the superintendent record and return the write-in votes exactly as they were written on the ballot. Ga. Code Anm 34-l32l(c), 341326(d), 34-1505. The person who receives the returns and tabulates, computes and canvasses the results and then officially declares the result is the person who must finally determine whether an incorrectly spelled write-in vote can be counted for a particular candidate. See, Ga. Code Ann. 34-1507, 34-1512. In many Cases this decision does not need to be made since it would not affect the outcome of the result in any way. However, if the decision must be made, it is my opinion that incorrectly spelled votes should be counted for that candidate if there is no question that the elector clearly intended to vote for the candidate to whom the vote is given. I am reinforced in this belief by the following language from the Election Code:
"Notwithstanding any other provisions of this Title or Code to the contrary, if the elector has marked his ballot in such a manner that he has indicated clearly and without question the candidate for whom he desires to cast his vote, his ballot shall be counted and such candidate shall receive his vote, notwithstanding the fact that the elector in indicating his choice may have marked his ballot in a manner other than as prescribed by this Title or Code." Ga. Code Ann. 341322A.

587
If there were two write-in candidates for an office whose names were "Autrey" and Awtry" and an elector wrote in the name "Autry" then the vote could probably not be given to either candidate. However, in those instances where the elector's intent can clearly and unquestionably be ascertained (e.g. if there was only one candidate named "Awtry"), then, in my opinion, the vote should be counted.

OPINION 68-412 (Unofficial)

September 26, 1968

Responding to your letter asking whether there is a law limiting the time for voting, the Georgia Election Code provides as follows:

"No elector shall remain in the voting compartment or voting machine booth an unreasonable length of time, and if he shall refuse to leave after such period, he shall be removed by the poll officers." Ga. Code Ann. 34-1319(b).

As you can see, there is no definite time limit in which a voter is required to vote, the amount of time being left to the discretion of the poll officers. Although the requirement of a "reasonable" time may sometimes impose burdens upon those waiting to vote, setting an arbitrary time limit would be difficult because the length of a ballot and its complexity varies so much from election district to election district.

OPINION 68-413 (Unofficial)

September 27, 1968

You have advised me that no one has yet qualified for certain vacancies in various justice of the peace districts in your area and you wish to know whether you may now arrange to have a special election on November 5, 1968 (the date of the general election) for the purpose of filling these offices, even though the terms of office have not yet expired. You further inquire whether, if my answer to your first question is in the negative, my opinion would be different if the present office holders were to resign.

You are probably aware that although no candidates for the various offices have yet qualified, it is still possible that the offices

588
will be filled by write-in candidates. A write-in candidate, pursuant to a recent constitutional amendment, must file notice of intention of candidacy twenty (20) or more days prior to the election, but the time for this possibility has not yet expired. Art. II, Sec. VI I, Par. I of Georgia Constitution (Ga. Code Ann. 2-120la).
In the absence of a vacancy occurring during a term of office, the Election Code provides that justices of the peace shall be elected at the November election, Ga. Code Ann. 34-802. A special election would be called only if the general election failed to fill the office or a vacancy occurs during a term of office. Ga. Code Ann. 24-406, 34-1515. Therefore, it is my unofficial opinion that, under the circumstances you outline, you may not hold a special election on November 5, 1968.
If the present office holders were to resign immediately, you could hold a special election pursuant to Ga. Code Ann. 24406 and 34-806, but it would only be to fill the unexpired terms until January 1, 1969, at which time the candidates elected at the November election or the special election held thereafter, would succeed to the offices.
OPINION 68-414 September 30, 1968
You have requested my opinion on the following questions:
I. Does the Insurance Commissioner have authority to require that life or health and accident insurance be sold in Georgia only through agents licensed in Georgia and not otherwise?
2. Does the language of Ga. Code Ann. 56-3008, properly interpreted, require that the outline of coverage be handed to the applicant in person by an agent of the soliciting company at the time the application is signed or are the requirements fulfilled by the insurer by making it a vailable to the applicant through a mail or newspaper advertisement?
You state that an insurance company has applied for a Certificate of Authority whereby the insurance company proposes to sell its insurance through direct mailings to the public or through newspaper advertisements advertising that the insurance

589
can be purchased at reduced rates due to the fact that the insured does not have to pay commissions to any insurance agent.
As you are a ware, the Insurance Code provides as follows:
"No insurer shall issue, make, write, place or cause to be made, written, placed or issued any contract of life, or accident and sickness insurance in this State except through an agent who is licensed, pursuant to the provisions of this Chapter, at the time when the application for the contract of insurance is written." Ga. Code Ann. 56-803a(2).
In view of the above language, it is clear that unless a court declares the above Insurance Code requirement unconstitutional for some reason, the Insurance Code does require that life or accident and sickness insurance be sold through a licensed agent. There is no Georgia Supreme Court or United States Supreme Court case holding that the above Insurance Code requirement is unconstitutional. I have reviewed at length the various United States Supreme Court cases on this question and I have found no authority which would persuade me that the above Insurance Code requirement is unconstitutional.
Therefore, it is my opinion that you may continue to follow the provision of the Georgia Insurance Code requiring life or health and accident insurance sold in Georgia to be sold only through a licensed agent.
In reference to your second question, the Insurance Code provides as follows:
"Every insurer shall furnish to any applicant for accident and sickness insurance in this State a written outline showing the major coverage of the policy applied for, the major exclusions of the policy applied for, the renewal provisions of the policy applied for, and a reference to the policy as respects further provisions. Such written outlines shall be given to the applicant at the time of signing the application for such policy.... " (Emphasis added.) (Ga. Code Ann. 56-3008).
I have found no relevant Georgia cases interpreting the above language. In the absence of any specific interpretation of a court to the contrary. I can see no authority for requiring that this information be furnished in person by an agent of the soliciting

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insurance company. It is therefore my opinion that lJa. Code Ann. 56-3008, properly interpreted, does not require that the information be handed to the applicant in person by an agent of the soliciting company at the time the application is signed.
OPINION 68-415 September 30, 1968
This is in reply to your letter regarding the use of six acres of land more particularly known as the "Rocky Face Ridge Site" located in Whitfield County as a location for the establishment of a patrol barracks. It is our understanding that this property is now in the custody of the State Highway Department and is maintained as a part of the State Highway Department's program of roadside parks. Furthermore, this property was conveyed to the State of Georgia by quit-claim deed executed by the United States of America acting through and by Oscar L. Chapman, Secretary of the Interior, dated March 20, 1952, pursuant to the provisions of an Act of September 21, 1950 (64 Stat. 896), entitled "An Act to provide for the conveyance of certain historical properties to the State of Georgia, and for other purposes."
Under the provisions of this Act, P.L. 801, 64 Stat. 896, Congress provided:
" . . . the Secretary of Interior is authorized to convey to the State of Georgia without consideration for public use as a part of the park system of that state, and under such terms and conditions as the Secretary may deem advisable . . . [wherein there follows a description of the property in question]"
Also in the Quit-Claim Deed executed by the Government, there is provided that this property is quit-claimed "unto the State of Georgia . . . for public use as part of the park system of the State of Georgia . . . " The above quoted phrases have created a great amount of apprehension and consideration by this office. This is due to the fact that the contemplated patrol barracks will, in effect divert the use of this property from the public use for which the Federal Government specifically stated that it was granting this land to the State of Georgia.
As you know, it is the general policy of State agencies, before making improvements upon property, to obtain title insurance in

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order to prevent any loss to the State in the event of future litigation resulting in the forfeiture of these improvements and the property on which these improvements existed. This office has made a preliminary inquiry with a representative of a title insurance company and has been informed that title insurance would be issued, but with the exception that no insurance would be issued covering any litigation or loss arising out of claims under the above set forth reservations in the Government's QuitClaim Deed.
Therefore, it is concluded that your Department should seek other property for the location of this patrol barracks, or in the alternative, attempt to have the appropriate Congressmen introduce legislation to amend the above cited portions of this Act by deleting those parts which expressly limit the use to which this land can be used.
Furthermore, it would be advisable to introduce legislation in The General Assembly in conjunction with legislation in Congress to have the Legislature expressly abandon this property for park purposes. This would avoid any challenges on the state level regarding the diversion by the State of Georgia of land dedicated to one public use for another public use. See Norton v. City of Gainesville, 211 Ga. 387 (1955), Brown v. City of East Point, 148 Ga. 85 (1918).

OPINION 68-416 (Unofficial)

October 1, 1968

You requested advice as to the amount of tax due on a note from you to a nonresident credit union when the loan from the credit union to you is secured by real estate within and without the State of Georgia.

Ga. Code Ann. 92-164 requires "[e]very holder of long term notes secured by real estate" prior to presenting the security instrument to the clerk of the court where the real estate is situated to present said instrument to the tax collector of said county for the payment of an intangible tax on said long term notes. (Emphasis added.) Previous opinions of this office have held that the Act clearly places the burden of payment on the

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"holder' of the note not the borrower. (Op. Atty. Gen., 1954-56, p. 787).
Section 92-169 states in part:
"If any instrument conveying, encumbering or creating a lien on real estate located within and without Georgia as security for long term notes is held by a nonresident of the State when presented for recording under this law [ 92-161 through 92-184], the tax required hereunder shall be that proportion of the tax which would otherwise be required hereunder that the value of the real estate within Georgia bears to the total value of all the real estate within and without the State described in such instrument, which values shall be certified under oath by the holder presenting the instrument for record.''
Therefore, the Campus Federal Union should present to the Tax Collector of Grady County, Georgia, a certification under oath of the proportionate value the real estate within Georgia bears to the total value to all of the real estate within and without the State of Georgia along with payment of the tax on the proportional value.

OPINION 68-417 (Unofficial)

October l, 1968

This is in reply to your letter concerning the perfection of security interests on titled vehicles.
In accordance with Ga. Code Ann. 68-42la(b) a security interest can be perfected only by delivery to the Commissioner of the outstanding certificate of title and an application for a new title containing the name and address of the security interest holder.

The Commissioner is authorized to cancel an outstanding title only if by a mistake the security interest was not shown on the application, and a title was issued which did not truthfully reflect outstanding liens against the vehicle.

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OPINION 68-418 (Unofficial)

October 1, 1968

This is in response to your inquiry as to to whether the purchase of trucks which will be leased to a common carrier to be used principally to cross the borders of the State of Georgia in the service of transporting cargo by common carrier in interstate commerce is exempt from the Sales and Use Tax Act under H.B. 48.

In my opinion, purchases of these trucks are not exempted by this particular amendment to the Sales and Use Tax Act, now codified as Ga. Code Ann. 92-3403a(C)(2)(q). However, from the stand point of the Sales and Use Tax Act, such purchases would be deemed wholesale transactions and therefore tax exempt.

The Act defines a "lease or rental" as a "sale" for tax purposes. Ga. Code Ann. 92-3403a(B). The Act imposes a sales tax only upon "retail sales". Ga. Code Ann. 92-3402a. Therefore, where trucks are bought solely for the purpose of leasing them to others, the purchases are for "resale" and, thus, exempt from the tax.

I think H.B. 48 is totally irrelevant to your purchases of the trucks where you do not use them in the manner specified in this amendment to the Sales and Use Tax Act. Nonetheless, I'm sure you will be happy to learn that I am confident they are exempt under other provisions of the Act.

OPINION 68-419

October 3, 1968

You made two (2) inquiries as to the allocation of State funds to Georgia counties for the operation of county-owned detention centers.

Specifically, you made a request for my opinion on the following questions:

1. A. Do we have authority to incorporate in the formula for arriving at the amount of funds that a county shall receive a provision that total funds to be disbursed by this Department will not be in excess of total funds spent by the county for detention purposes during the preceding year; B.

594

or do we have authority to incorporate in the formula a provision that funds tentatively allocated for disbursement to the respective county for a given fiscal year shall not be in excess of funds spent by such county for detention purposes during this same fiscal year?

2. Do we have authority to deduct from funds determined to be allocated in accordance with prescribed formula for Fiscal Year 1969 the amount in excess of State funds disbursed to counties for detention purposes over those actually spent for such purposes during the preceding year (Fiscal Year 1968)?

I have taken the liberty of renumbering your first question as question Number l.A. and l.B. for easy reference in preparing this opinion. Additionally, before a reply can be given to your questions, certain facts must be stated and statutes reviewed.

By the 1967 General Appropriations Act (Ga. Laws 1967, pp. 41, 68-69), the 1967 General Assembly of Georgia appropriated funds to the Department of Family and Children Services, in part, as follows:

Institutions. For the cost of operation of the institutions under the administration of the Department of Family and Children Services, including construction costs of a new institution for girls, and grants to county-owned detention centers.

1967-68 0 1968-69 0

.$6,645,000.00 .$4,533,000.00

Additionally, by Ga. Laws 1968, pp. 146, 178-180, the 1968 General Assembly amended the above General Appropriations Act in regard to the appropriations for institutions funded by the Department of Family and Children Services, in part, as follows:

Institutions. For the cost of operation of the institutions under the administration of the Department of Family and Children Services, and for grants to county-owned detention centers.

1968-69 0 0 0 0 0 0 0 0 0 0$5,018,900.00

Provided, however, the $500,000.00 allotted under this section for grants to county-owned detention centers shall be

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distributed to the several counties for operation expenses of the said centers without restriction.

According to your letter, your Department enters into a

contractual agreement with the various Georgia counties having

county-owned detention centers whereby State funds are allocated

and distributed to such counties to be used for detention purposes.

Attached to your letter, were copies of the 1967 and 1968 (marked

Attachments A and B, respectively) "Contractual Agreement

Between State Board for Children and Youth, Division for

Children and Youth, Department of Family and Children Services

and the Commissioners of

County" (hereinafter

sometimes referred to as "Contractual Agreements") which were

and are to be used by your Department to enter into contractual

agreements with the counties.

Additionally, you stated in your letter that a formula is utilized by your Department to determine the actual funds to be allocated and disbursed to the various counties. According to the attached 1968 "Contractual Agreement," the formula for fiscal 1968-69 provides for the determination of the amount of funds to be allocated and distributed to each county, as follows:

1. Each participating county shall receive a basic allocation of $10,000 per annum.

2. Each participating county shall further receive an annual allocation of ten cents (10) per capita based on county population estimated by the Georgia Departmant of Public Health, dated July 1, 1967

3. Each participating county shall further receive an annual allocation matching a portion of actual costs of detention incurred by the county during the twelve months period July 1, 1967, through June 30, 1968, this portion to be determined by the sum of detention costs for all participating counties and the appropriated funds remaining after deduction of shares based on 1 and 2 immediately above.

It is noted that the above formula is identical with that utilized in the enclosed 1967 "Contractual Agreement" for the Fiscal Year of 1967-68, except that where the Fiscal Year of 1967-68 is referred to above, the formula for 1967-68 refers to Fiscal Year 1966-67 and the Health Department population estimates of July 1, 1966, are referred to rather than those for July 1, 1967.

596
According to your letter, you indicated that there are seven (7) Georgia counties with county-owned detention centers which receive State funds from your Department pursuant to a "Contractual Agreement."
Furthermore, according to the information which you supplied in your letter, three (3) Georgia counties when applying for allocations of the appropriated funds for Fiscal Year 1968-69, indicated that said counties did not expend the total sums allocated and actually disbursed by your Department to such counties during the Fiscal Year of 1967-68. You stated that one Georgia County was allocated and actually had disbursed to it $37,437.00 for Fiscal 1967-68 while said County only spent $30,245.74 for detention purposes during said Fiscal Year. Furthermore, you stated that another Georgia County was allocated and actually had disbursed to it $48,726.00 for Fiscal 1967-68 while during the Fiscal Year the County spent only $43,083.61 for detention purposes. Finally, you stated that for Fiscal 1967-68, there was allocated and disbursed to still another County $40,943.00 of which only $40,560.44 was spent for detention purposes.
In your letter you stated that during Fiscal 1967-68, the other four (4) counties spent in excess of the sums allocated and distributed to said counties. Therefore, the questions involved herein are not applicable to said additional four (4) counties, except to the extent that the opinions contained herein would apply to any county which does not utilize for detention purposes all of the funds allocated and distributed to such county in the future.
In your letter you have stated that your Department is now in the process of determining the amount of State funds to allocate to the counties operating detention centers during the current Fiscal Year of 1968-69.
Additionally, you have stated that the provision in the 1967 "Contractual Agreement" whereby the counties entering into said "Contractual Agreement" agreed to utilize the State funds appropriated to meet the "standards and goals" as established by the State Board for Children and Youth on June 15, 1967, has been eliminated due to the provision in the 1968 Amendment to the 1967 General Appropriations Act whereby the General Assembly of Georgia provided that the funds appropriated for

597
county-owned detention centers would be "... distributtu to the several counties for operation expenses of the said centers without restriction." (Emphasis added.) Ga. Laws 1968, pp. 146, 180.
By the "Children and Youth Act" (Ga. Laws 1963, pp. 81, 82 and Ga. Code Ann. 99-202), the following purpose, in part, is stated in establishing the Division for Children and Youth within the Georgia Department of Family and Children Services:
The purpose of this Chapter is to promote, safeguard and protect the well-being and general, welfare of children and youth of the State through a comprehensive and coordinated program of public child welfare and youth services, providing for: social services and facilities for children and youth who require care, control, protection, treatment or rehabilitation, .... It is the further purpose of this Chapter to provide a qualified group of citizens and professional leadership which will identify and study the problems of youth, recommend and effect possible solutions, and work actively for State and local action to prevent children and youth from becoming inmates of our prisons, patients in our mental hospitals, and persons dependent upon public assistance programs.
Pursuant to this purpose, the Georgia "Children and Youth Act" provided by Ga. Laws 1963, pp. 81, 100 (Ga. Code Ann. 99-211 (d]) as follows:
The Division for Children and Youth is authorized and empowered, through its own programs and the programs of county or district departments of family and children services, to establish, maintain, extend and improve throughout the State, within the limits of funds appropriated therefor, programs that will provide:
(d) Regional group care facilities for the purpose of:
(1) Providing local authorities an alternative to placing any child in a common jail;
(2) Shelter care prior to examination and study or pending hearing before juvenile court;
(3) Detention prior to examination and study or pending hearing before juvenile court;

598
(4) Study and diagnosis pending determinatiOn of treatment or hearing before juvenile court.
Finally, by Ga. Laws 1963, pp. 81, 117 (Ga. Code Ann. 99216), the following authority is given the State Board for Children and Youth, which serves as the administrative board for the Division for Children and Youth:
The board shall have the power and is hereby authorized:
(a) To enter into contracts with Federal, State, county and municipal governments, and agencies and departments of the same; public and private institutions and agencies of this and other States; and individuals, as may be necessary or desirable in effecutating the purposes of this Chapter.
Therefore, as will be seen by reference to the above cited authorities, the State Board for Children and Youth is empowered and authorized to enter into a contract with counties having county-owned detention centers in order to carry out the purposes as stated in the above-stated "Children and Youth Act."
A question which must be first answered is as to whether or not the State Board for Children and Youth has the power and authority to incorporate the heretofore mentioned formula into a contract to be utilized in determining the funds to be allocated and disbursed to the counties having county-owned detention centers. The next question which is your question 1.A. is as to the actual authority of the State Board for Children and Youth to incorporate into said formula a provision that the "... total funds to be disbursed by this Department (state Department of Family and Children Services) will not be in excess of total funds spent by the county for detention purposes during the preceding year, . . . . " Next, your renumbered question l. B. goes to the actual authority of the State Board for Children and Youth to provide, by the heretofore mentioned formula, that ". . . the funds tentatively allocated for disbursement to the respective county for a given fiscal year shall not be in excess of funds spent by such county for detention purposes during this same Fiscal Year."
In construing a statute, the cardinal rule is to look diligently for the intention of the General Assembly when enacting the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102(9). Thus, to determine whether a formula

599
is permissible, attention must be directed to the previously cited statutes.
It is my official opinion that the State Board for Children and Youth has the authority to provide a formula for determining the funds to be allocated and distributed to the counties.
Additionally, it is my official opinion that in answer to the question numbered l.A. that the State Board for Children and Youth does not have the authority to provide in a formula that the funds allocated and distributed to a county in one fiscal year ". . . will not be in excess of the total funds spent by the county for detention purposes during the preceding year, . . . . " Such a provision would, in my opinion, contravene the intention of the legislature since for some reason a county, especially a county entering into this program the first time, could wish to expand or modify its detention program and a formula could possibly be derived that would take such into account.
Concerning your question which is renumbered as 1. B., it is my official opinion that the State Board for Children and Youth has the power to incorporate in a formula a provision that the funds disbursed for county-owned detention purposes will not exceed the total funds spent by the various counties for detention purposes during the fiscal year involved. It is my opinion that the General Assembly did not intend to provide, authorize or allow the disbursement of State funds to counties in excess of the funds utilized by each individual county for the purpose for which said funds were appropriated. You will note that the legislative restrictions of the 1968 Amendments to the 1967 General Appropriations Act (Ga. Laws 1968, pp. 146, 180), provides that the " ... grants to county-owned detention centers shall be distributed to the several counties for operation expenses of the said centers without restrictions." (Emphasis added.)
Therefore, it is my official opinion that the funds appropriated for Fiscal 1968-69 were appropriated specifically to be utilized for detention purposes and that the General Assembly did not intend for such funds to be utilized by the counties for any other purposes. Said funds would, in my opinion, be utilized for other purposes if the funds distributed to the counties exceeded the amount that any county actually expended for detention purposes during a given period of time.

600
In answer to your question number two, it is my official opinion that you have the authority to deduct from those funds allocated and distributed to the counties for the fiscal year of 1968-69 the amount by which the funds distributed for the fiscal year of 1967-68 to said counties for county-owned detention purposes exceeded the actual expenditures for such purposes during said fiscal year of 1967-68. As previously indicated, the counties in question did not expend for detention purposes funds during fiscal 1967-68, equal to the amount allocated and actually distributed for detention purposes to said counties.
As a matter of contract law, the "Contractual Agreement" utilized in 1967 and executed by each of the counties in question provided as a matter of the terms of said agreement that the funds received would be utilized for detention purposes. The 1967 "Contractual Agreement" provided in the "Purpose of Agreement" that same was " . . . to set forth conditions . . . for participation in a statewide system of juvenile detention resources; ... , and to establish the basis for cooperation between the county and the Division for providing detention services to children."
Furthermore, the "Agreement" of the 1967 "Contractual Agreement" provided that the commissioners of the executing county agreed " ... to join the State Board for Children and Youth in developing a statewide system of juvenile detention care, ...."
Additionally, said Commissioners agreed in Part II. A. of the 1967 "Contractual Agreement" that the funds obtained would be utilized "... to otherwise strengthen and improve the county's juvenile court program."
Thus, it is my official opinion that the 1967 "Contractual Agreement" limited the purposes for which the funds obtained could be utilized to detention purposes. Since the counties under consideration received funds in excess of those expended for detention purposes, which was the purpose provided in the said contract, it is my official opinion that those funds received in excess of those actually expended can and should be deducted from the funds which have been allocated and are to be distributed to the counties in question during fiscal 1968-69.

601

OPINION 68-420 (Unofficial)

October 3, 1968

In your letter, you inquired as to whether it is legal for a person to be both Chief of Police of a municipality and a Justice of the Peace at the same time.

The office of Justice of the Peace has been held by the courts to be a State office rather than a county office. Overton v. Gandy, 170 Ga. 562 (1930). Therefore, involved is a State officer and an "officer" of a municipality.

While there are various constitutional and statutory prohibitions against the hoiding of incompatible offices at the same time, I am unaware of any provision which would make it illegal per se for a person to occupy the office of Justice of the Peace and at the same time occupy the position of Chief of Police of a municipality. Please let me add, however, that traditional notions of due process of law would be offended if the same individual were to make an arrest, prosecute, and then sit in judgment of the case. But this is a matter which would have to be considered in relation to the particular circumstances of each case, and it is impossible to say hypothetically whether the activity would be improper in a given situation.

In view of the foregoing comments, it is my unofficial opinion that there is nothing in the general law of this State which would prohibit a person from holding the offi~e of Justice of the Peace and at the same time occupying the position of Chief of Police of a municipality. A person acting in this dual capacity could act improperly in some instances, but it would be the application of his duties in relation to each other rather than the mere holding of the two positions which would be improper.

OPINION 68-421 (Unofficial)

October 3, 1968

You requested this office to furnish you with a clarification of certain portions of Act No. 747 (S.B. #363) passed by the 1968 Session of the Georgia General Assembly relating to reimbursement of utility relocations.

A portion of the Act provides authorization for the State

602
Highway Department to pay relocation costs of public utilities owned by "Authorities created under the laws of the State of Georgia pertaining to public utilities". The General Counsel for the Bureau of Public Roads states that the quoted language is subject to diverse interpretations. This Opinion is intended to clarify what is meant by "Authorities created under the Ia ws of the State of Georgia pertaining to public utilities".
Ga. Code Ann. 22-103, provides for the definition of a public corporation as "one having for its object the administration of a portion of the powers of government, delegated to it for that purpose". Art. III, Sec. 7, Par. 17 of the Constitution of Georgia (Ga. Code Ann., 2-1917), provides in part that "the General Assembly shall have no power to grant corporate powers and privileges to private companies". Therefore, the Authorities referred to in Act No. 747 (S.B. #363) are Authorities declared by the General Assembly of Georgia to be bodies corporate and politic, which shall be deemed to be an instrumentality of the State of Georgia and a public corporation.

OPINION 68-422

October 3, 1968

In your request for opinion, you have posed the following questions:
"(1) In the Biennial Budget report, can the Governor recommend an appropriation for a fiscal year for an amount which includes the sum of the amount of unappropriated surplus expected to have accrued in the State Treasury at the beginning of such fiscal year, together with an amount equal to the total Treasury receipts anticipated to be derived from existing revenue sources and from proposed new revenue sources?
"(2) In its 1969 regular session, can the Georgia General Assembly appropriate for Fiscal 1970 anticipated revenues from new taxes or increased tax rates enacted in the session, even though the effective dates of such tax changes are subsequent to the date of enactment of such appropriation?
"(3) Can 1968 appropriated funds which have lapsed to the State Treasury after July 1, 1968 be reappropriated by the 1969 General Assembly for Fiscal Year 1970?"

603
A1 .. VII, Sec. IX, Par. II. Subpar. (b) [Ga. Code Ann. 26202(b)], as a mended (Ga. Laws 1962, p. 752) provides in pertinent part as follows:
"The General Assembly shall not appropriate funds for any given fiscal year which, in aggregate, exceed a sum equal to the amount of unappropriated surplus expected to have accrued in the State Treasury at the beginning of the fiscal year, together with an amount not greater than the total Treasury receipts from existing revenue sources anticipated to be collected in the fiscal year, less refunds, as estimated in the Budget Report and amendments thereto. . . . "
As you are aware, the phrase "unappropriated surplus" does not include the estimated or anticipated lapse of funds under an existing appropriations act. Opinion 68-11.
As you have utilized the expression "existing revenue sources" in your first question, and as that phrase also appears in the above-quoted provision of the Constitution, I assume for purposes of this opinion that the two phrases mean the same. Thus interpreted, it appears clear that the General Assembly cannot appropriate on the basis of "proposed new revenue sources" as opposed to "existing revenue sources." However, as will appear below, this is not to say that the Governor cannot recommend an appropriation based upon proposed new revenue sources, so long as his recommendation separates "existing revenue sources" and proposed revenue sources.
Your second question involves an interpretation of this very phrase- "existing revenue sources"; i.e. is a new tax or an increased tax rate enacted at the 1969 regular session of the General Assembly an "existing revenue source", even though the effective dates of such tax changes are subsequent to the date of enactment of such appropriation?
It occurs to me that a new tax law or an amendment increasing a tax rate can be made effective as an existing law upon passage by the General Assembly and approval by the Governor, notwithstanding the fact that the commencement of collection of the new or increased tax is a later date. I base this portion of my opinion upon the assumption that such new or increased tax bill will have become law at the time of the passage of the appropriation act, although the collection of such new or

604
increased tax will not have commenced. Prior to the 1962 amendment to the Constitution, the Appropriation Control section of the Constitution (Art. VII, Sec. IX, Par. II I) (Ga. Code Ann. 2-6203) contained the following:
" ... The General Assembly may make additional appropriations by Acts, which shall be known as supplementary Appropriations Acts, provided no such supplementary appropriation shall be available unless there is an unappropriated surplus iri the State Treasury or the revenue necessary to pay such appropriation shall have been provided by. a tax laid for such purpose and collected into the General Fund of the State Treasury." (Emphasis added.)
Prior to the 1962 amendment, a supplementary appropriation could not be based on new taxes or an increased tax rate enacted at the same session of the General Assembly because such supplementary appropriation could not meet the requirement that it be "a tax laid ... and collected . . . . " See State Ports Authority v. Arnall, 201 Ga. 713 (1947). However, as the 1962 amendment does not utilize the prior language as to a tax laid and collected, it is to be assumed that a change was intended.
Also enacted in 1962, was the "Budget Act" (Ga. Laws 1962, p. 17; Ga. Code Ann. Ch. 40-4). It is the 1962 Budget Act which is referred to in the first sentence of the 1962 constitutional amendment (". . . in such form and manner as may be prescribed by statute.... ") (Art. VII, Sec. IX, Par. I; Ga. Code Ann. 2-6201 ). Thus, I believe that the Budget Act can be read as an aid to understanding the constitutional amendment.
You will note that Ga. Code Ann. 40-406 provides in pertinent part as follows:
"The Budget Report shall contain and include the following information:. . . .
"2. . . . existing sources of income and receipts shall be analyzed as to their equity, productivity and need for revision, and any proposed new sources or income or receipts shall be explained. . . .
"6... [I]f the total of the recommended expenditures exceeds the total of the estimated resources, recommendations as to how the deficiency is to be met and estimates of receipts from any proposed additional revenues.

605
"7. A draft of a proposed General Appropriation Act 'or Acts embodying the Governor's Budget Report and recommendations for appropriations for each of the next two ensuing fiscal years, and drafts of such revenues and other acts as may be recommended for putting into effect the proposed financial plan. . . ."
Ga. Code Ann. 40-407 tracks the language of the constitutional amendment quoted above. Ga. Code Ann. 40412 provides in pertinent part as follows:
"1. The financial plan for each fiscal year, as presented in the Budget Report, shall be adopted, with such modifications as are made by the General Assembly, by the passage of a General Appropriation Act.and such revenue and other Acts as are necessary for the purpose."
Subparagraph 3 of Ga. Code Ann. 40-412 tracks the abovereferred-to provisions of the Constitution as it. existed prior to 1962. It relates solely to supplementary Appropriation Acts. Your question, as I understand it, relates to the General Appropriation Act.
In view of the foregoing provisions of the Budget Act, it is my view that, based upon the assumptions heretofore stated with respect to the timing of the passage of new or increased taxes, that your first and second questions should be answered in the affirmative.
Responding to your third question, funds which have lapsed into the State Treasury pursuant to Art. VII, Sec. I X, Par. II, Subpar. (c) [Ga. Code Ann. 2-6202(c)], or pursuant to Ga. Code Ann. 49-420, can be re-appropriated.

OPINION 68-423

October 7, 1968

You have requested my opinion on the following question:

"If an incumbent runs for nomination by a political party in the General Primary for re-election to the office he now holds and is defeated in the Primary, does the said incumbent have to resign his office if he decides to run as a write-in candidate for re-election?"

I am not aware of any law or decision of any court which would

606
require an incumbent, defeated in a primary for reelection to the office he holds, to resign his office if he decides to run as a writein candidate for re-election.

OPINION 68-424 (Unofficial)

October 8, 1968

In your letter, you ask who would be responsible for maintaining the asphalt surface of the road over the L. & N. Railroad crossing, Route #92, in the downtown area of Acworth, Georgia. You state that the asphalt is broken next to one of the wooden ties, in the middle of the railroad crossing.
Any opinion as to responsibility in this case would be purely hypothetical due to the fact that I am not familiar with all of the facts and circumstances surrounding the facts mentioned in your letter. Therefore, anything which is said in this letter is based purely upon the facts in your letter and not upon any i'nvestigation by this office as to the actual facts in the case.
Assuming that the asphalt which is broken is in the middle of the railroad crossing, it would appear that the L. & N. Railroad would be responsible for maintaining the asohalt surface. This opinion is based upon a construction of Ga. Code Ann. & 94-503, which reads as follows:
"Upkeep and repair of' crossings; bridges, embankments, and excavations.-All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws."
Further, in the case of Southern Railway Company v. Brooks, 112 Ga. App. 324 (1965), the Court of Appeals held in effect that Ga. Code Ann. 94-503 placed an absolute duty on railroads, among other things, to maintain at their expense and in a reasonably safe condition all public crossings over their tracks.
Therefore, construing the Code Section mentioned above and the Southern Railway case, it is my opinion that L. & N. Railroad

607
would be responsible for maintaining the asphalt surface of State Route 92 over the L. & N. crossing.

OPINION 68-425 (Unofficial)

October 8, 1968

You requested an opinion as to whether transcriptions made from electronic recording equipment would be accepted as evidence in cases appealed from the Juvenile Courts of Georgia. Additionally, this will acknowledge your reply to a letter from me wherein I requested additional information in regard to your proposed operational procedure when using such recording devices.
According to the information you supplied, you are considering the purchase of some electronic recording machinery which makes audio recordings on eraseable belts. You also have stated that you plan to have the proceedings in the Juvenile Court of Dougherty County recorded on these belts for possible transcription.
In response to my inquiry, you stated that you do not plan to transcribe each hearing from the recorded belts, but that you plan to transcribe only those hearings in which you are sure an appeal is going to be made.

Furthermore, you stated that you plan to retain the belts which

contain the recordings of the hearings until after you are sure that

the case will not be appealed and then you plan to reuse the

recording belts.



As you know, the cardinal rule of statutory construction is to look diligently for the intention of the General Assembly when enacting the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102(9).
Therefore, it is necessary that we view the statutes, as amended, pursuant to which the Georgia Juvenile Courts were established.

The Georgia Juvenile Court Act of 1951 (Ga. Code Ann. 242401 et. seq.), prior to the substantial amendments of 1968 which were made as a results of the United States Supreme Court decision of In Re Gault, 387 U.S. 1, 87 S.Ct. 1429, 18 L.Ed.2d 527 (1967), provided that:

Stenographic notes or other transcript of the hearings shall

608
be required only if the court so orders. (Ga. Laws lSI51, pp. 291, 303 and Ga. Code Ann. 24-2420.)
However, by Ga. Laws 1968, pp. 1013, 1035, the following provision is now made in regard to transcripts:
An official court reporter shall take down all the testimony and all the remarks of the Judge and all persons appearing at any juvenile court hearing conducted by the juvenile court judge, unless waived by the juvenile, his parent, guardian or attorney. Upon being directed by the court or upon request of the juvenile, his parent, guardian or attorney, the court reporter shall transcribe the testimony taken and certify the same as being correctly reported and transcribed. When directed by the court, the reporter shall file the certified transcript with the clerk of the court. Unless otherwise directed by the judge, the cost of transcribing all or any portion of the reporter's notes shall be paid in advance by the person requesting the transcript.
Thus, by the 1968 amendment to the Juvenile Court Act of 1951, transcripts must be taken at any juvenile court hearing, unless such are waived.
It will be noticed from the a hove-cited statute that same provides that: "... the court reporter shall transcribe testimony taken and certify the same as being correctly reported and transcribed."
Thus, from a reading of the above statute, it appears that the legislature envisioned a procedure whereby a court reporter would take down the testimony in such a way that same would need to be transcribed so as to be readily accessible to the parties. Although the final provision of a statute states that: "Unless otherwise directed by the judge, the cost of transcribing all or any portion of the reporter's notes shall be paid in ad vance by the person requesting the transcript", it is my unofficial opinion that the legislature did not intend, by the use of the word "notes," that the reporter actually had to take notes in writing. Certainly, with the electronic developments in the machinery which is now utilized to make audio recordings, the General Assembly of Georgia must have intended that the testimony could be taken by some electronic recording equipment and then transcribed later into written form.

609
In your letter you inquired as to whether transcriptions made from such belts would be accepted as evidence in cases which were appealed from a juvenile court to the Georgia Court of Appeals or Georgia Supreme Court.
Your attention is called to Rule 12 of the Georgia Court of Appeals (Ga. Code Ann. 24-3612) which provides that:
Every bill of exceptions and transcript of record shall be plainly written or printed upon white paper, not so thin as to be transparent, with ample spacing between the lines, so as to be easily read.
Additionally, your attention is called to Rule 9 of the Georgia Supreme Court (Ga. Code Ann. 24-4510) which provides for the same identical rule. Following this provision in each of the above-cited rules, additional requirements are found as to the arrangement of the transcripts, the typing of same and the page margins. No reference is made as to the manner in which the testimony presented in the lower court was taken or how it was transcribed into the "plainly written or printed" form.
Therefore, in answer to your question, it is my unofficial opinion that electronic recording machinery would be adequate to meet the requirements of the Georgia Juvenile Court Act, as amended, for the taking of testimony and preparation of transcripts.
However, your attention is called to Ga. Laws 1968, pp. 1013, 1033 (Ga. Code Ann. 24-2432) which provides as follows:
(1) The juvenile court is a court of record, having a seal, and the judge and his duly appointed representatives shall each have power to administer oaths and affirmations.
(2) The juvenile courts shall make and keep records of all cases brought before it, and shall preserve the records pertaining to a child until ten (10) years after the last entry was made, and may destroy them, except that records of cases where orders were entered permanently depriving a parent of the custody of the child shall be preserved permanently. The juvenile court shall make official minutes, consistent of all petitions and orders filed in a case and any other pleadings, certificates, proofs of publications, summons, warrants, and other writs which may be filed

610
therein and shall make social records, consisting of records of investigation and treatment and other confidential information not forming part of the official records.
In regard to your inquiry as to whether the belts may be reused, it is my unofficial opinion that the above statute requires that belts containing transcriptions of Juvenile proceedings, which are not transcribed into written form, must be kept for ten (10) years after the last entry is made in the case before same can be destroyed, except that the belts must be kept permanently in cases wherein an order permanently deprives a parent of the custody of a child.
Finally, your attention is called to Ga. Laws 1968, pp. 1013, 1035, supra, which provides that " . . . an official court reporter shall take down all the testimmy . . . . " It is my unofficial opinion that the hereina hove discussed electronic recording equipment may be used, but same may be used only when an official court reporter is present at the juvenile court hearing and using such electronic recording equipment.

OPINION 68-426 (Unofficial)

October 8, 1968

You have requested an unofficial opinion on several problems in regard to calling a special election under the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. Code Ann. Ch. 58-10).

The first problem is a conflict between the Revenue Tax Act, Ga. Code Ann. 58-1003, which provides for the holding of a special election within 30 days from the filing of the required petition and the Election Code, Ga. Code Ann. 34-806, which requires that at least 30 days shall intervene between the call of a special election and the holding of same.

The second problem concerns the wording of the question on the ballots to be used in the special election: The Revenue Tax Act, Ga. Code Ann. 58-1007, provides for "for" and "against" ballots while the Election Code, Ga. Code Ann. 341103(e), provides for a question and "yes" and "no" squares located to the left of the question.

If it appears that a later statute covers the same subject matter

611
as a previous statute and there is no manner in wh1ch the two statutes can be construed so as to be consistent with each other, the inconsistent parts of the previous statute may be said to be repealed by implication. Martin v. State, 74 Ga. App. 807(1) (1947).
The Department of Law in Opinions 66-108 and 67-249 has ruled that the 30 days provision of Election Code, Ga. Code Ann. 34-806, should be followed notwithstanding shorter time periods prescribed by pre-1964 laws as to certain offices, e.g. Ga. Code Ann. 24-1707 (Ordinaries), Ga. Code:: Ann. 24-406 (Justices of the Peace), and Ga. Code Ann. 32-1003 (County School Superintendent).
The Revenue Tax Act was passed at the 1937-38 Extraordinary Session of the General Assembly (Ga. Laws 1937-38 Extra. Sess., p. 103) while the Election Code was passed at the 1964 Extraordinary Session of the General Assembly (Ga. Laws 1964, Extra. Sess., p. 26). Insofar as the two Acts are inconsistent, the Election Code, being the latest expression of the legislature's will, must prevail and it is my unofficial opinion that you should conduct the special election according to the Election Code.
OPINION 68-427
October 9, 1968
There is no express constitutional or statutory authorization for the Attorney General to rule on constitutional questions, this being a judicial function. However, our Constitution [Art. VI, Sec. X, Par. II (Ga. Code Ann. 2-4502)] provides that it shall be the duty of the Attorney General "to act as the legal adviser of the Executive Department ... and to perform such other services as shall be required of him by law." The law (Ga. Code Ann. 40-1602) imposes on the Attorney General the duty, when required so to do by the Governor, to give his opinion in writing on any question of law connected with the interest of the State or with the duties of any of the departments.
In performing his duties, including the duty of rendering opinions as specified above, the Attorney General has, on very rare occasions, come to the conclusion that a particular statute,

612
or part thereof, is not capable of being reconciled with the Constitution.
As you are aware, there is a legal presumption is favor of the constitutionality of an act of the legislature. The Attorney General of Georgia, recognizing that his opinions do not have the force and effect of a cour.t decision, gives even greater weight to this presumption than would be given it by the courts. Thus, an act of the legislature will never be construed as violative of the Constituion, unless its terms are such as to absolutely demand such a conclusion.
As you can see, the authority of the Attorney General in this area is a necessarily implied statutory authority, surrounded by safeguards. This authority is so sparingly used that we would be interested in obtaining a copy of the result of your survey if such a report is compiled.

OPINION 68-428 (Unofficial)

October 9, 1968

You asked for an opinion relative to "the necessity of opening the 'Grandfather Clause' in order to amend the present law" which requires registration to practice professional Forestry. I assume that you are making reference to Opinion 68-395 in which you were advised that Ga. Code Ann. 43-212a would have to be amended before the State Board of Registration for Foresters could require a written examination of all applicants. Taken in this context, the question for consideration involves whether such an amendment would have to include a "grandfather clause."

"Ordinarily, as applied to regulation of a profession, a 'grandfather clause' exempts from the examination prerequisite to obtaining a license those already bona fide engaged in practice of a profession being regulated for the first time." l8A Words and Phrases 36. Such exemptions have been upheld as constitutional in this State as being a proper exercise of the legislative power so long as the differentiation among classes of persons is not arbitrary or oppressive. Cooper v. Rollins, 152 Ga. 588 (1920). The justification for exempting certain persons from a licensing requirement is that those who have pursued the particular trade or profession for a period of time can be presumed to have

613
adequate qualifications. Watson v. Maryland, 218 U.S. 173, 54 LEd. 987 (1910); Cooper v. Rollins, supra.
The. fact that a "grandfather clause" is generally held constitutional does not mean that an act would be defective because of the absence of such a provision. Involved is a matter of regulation of a profession or trade under the police power of the State, and so long as the legislature does not act arbitrarily or oppressively a court will not interfere.
In summary, it is my unofficial opinion that Ga. Code Ann. 43-212a could be amended so as to require an examination of all applicants without exempting any particular class of applicants from the registration requirements of the law, as so amended.

OPINION 68-429

October 10, 1968

This is in response to your letter asking for my official opinion as to whether or not as a condition of the election of widow's benefits pursuant to Ga. Laws 1968, p. 275, a judge must pay an amount equal to two percent of his State salary for each year of prior service as Judge of the Superior Court up to the time of making such election.

I am of the opinion that tqe General Assembly intended such elections of benefits to be conditioned upon the making of such payments. In Section 2 of the 1968 amendment, it is expressly provided that the option of electing widow's benefits is "subject to the following condition's," one of which conditions is that

"Any judge so electing shall pay an amount equal to two percent (2%) of his State salary for each year of prior service as Judge of Superior Court up to the time of making such election . . . . "Ga. Laws 1968, pp. 275,276.

OPINION 68-430 (Unofficial)

October 10, 1968

Mr. F's letter indicates that H was the owner of a vehicle, L was the driver and B was authorized to use the vehicle on a share the profit basis with H. L was involved in an accident with X and

614
X is suing H, L and B. L has filed an SR-21 and it is Mr. F's position, who represents H, that inasmuch as L has filed an SR21 it would not be necessary for H to post security in response to an affidavit from X inasmuch as Mr. F has construed Ga. Code Ann. 92A-605(a) as meaning that either the operator or owner may post security to satisfy any judgment that could arise from the accident.
Your specific inquiry was "whether or not the facts in [Mr. F's] letter would change the way in which we administer the safety responsibility law." Not being familiar with the manner in which the Department of Public Safety administers the safety . responsibility law, the inquiry is difficult to answer. Instead, I will seek to apply the facts set out in Mr. F's letter to the applicable law in order to suggest a course of action to aid the Department of Public Safety in the administration of the safety responsibility law.
Ga. Code Ann. 92A-605(a) clearly provides for the sus pension of "the license and all registration certificates and all registration plates of the operator and owner" of any motor vehicle "unless or until the operator or owner ... furnishes security." Ga. Code Ann. 92A-605(a) continues and makes repeated reference to "operator or owner". The word "or" while sometime construed in a conjunctive sense, is ordinarily used and understood in the disjunctive sense. Smith v. The State, 15 Ga. App. 536, 539 (1914). Thus, it is not necessary that the operator and owner post security; it will suffice should the operator or owner post the security so long as such security is "sufficient for damages or injuries resulting from the accident as may be recovered against the operator or owner." Ga. Code Ann. 92A-605(a). It should be noted here, however, that notwithstanding the references to the posting of security the Director may require the "operator or owner or both" to give and maintain proof of financial responsibility.
The facts set out in Mr. F's letter indicate that the driver, L, has filed an SR-21 and would therefore appear to come within the exceptions of Ga. Code Ann. 92A-605 (a)2. The driver, L, of course, has no burden nor obligation to protect the interests of the owner, H, and therefore, it is H's obligation to comply also with the motor vehicle responsibility law.
Mr. F's letter does not reflect that the owner, H, has furnished



615
the security nor qualified for any of the exceptions enuttierated in Ga. Code Ann. 92A-605(c) or Ga. Code Ann. 92A-606. Accordingly, it is my unofficial opinion that inasmuch as the driver, L, did not post security sufficient to satisfy any judgments for damages or injuries, it therefore becomes incumbent on the owner, H, to furnish the security or to show that he is exempt from the requirement of posting security.

OPINION 68-431 (Unofficial)

October 14, 1968

You have requested my unofficial opinion on whether the published notice of candidacy for a write-in county office must appear in the official organ of the county at least 20 days prior to the general election or whether it is sufficient that the notice of publication be delivered to the official organ at least 20 days before the general election although the next edition of the local organ would be published only 19 days before the general election.

The Georgia Constitution provides as follows:

"No person elected on a write-in vote shall be eligible to hold office unless notice of his intention of candidacy was given 20 or more days prior to the election by the person to be a write-in candidate, or by some other person or group of persons qualified to vote in the subject election, as follows: . . . in a general election of county officers, to the ordinary of the county in which he is to be a candidate and by publication in the official organ of the same county ...." (Emphasis added) Georgia Constitution Art. I I, Sec. VI I, Par. I (Ga. Cod~ Ann. 2-1201a).
It is clear from the above quotation that the law requires the notice to be published 20 or more days prior to the election and it is therefore my unofficial opinion that the date of publication must be at least 20 days before the subject election.

You further enquire as to whether a candidate for county office who was defeated in a primary may run as a write-in candidate in the general election. I am not aware of any law which would prohibit such action and it is therefore my unofficial opinion that he may do so.



616

OPINION 68-432 (Unofficial)

October 14, 1968

You inquired as to the authority of the State Director of the Department of Family and Children Services to reject persons recommended by a County Commissioner for appointment to a County Board of Family and Children Services when such persons have relatives receiving public welfare assistance benefits through programs administered by the State Department of Family and Children Services.
As you know, the cardinal rule of statutory construction is to look diligently for the intention of the General Assembly when enacting the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102(9). With this rule of statutory construction in mind, the pertinent statutes and regulations concerning the State and County Departments of Family and Children Services must be consulted.

You attention is called to Ga. Laws 1963, p. 222 (Ga. Code Ann. 99-503) whereby the following provision is made for the composition of County Boards of Family and Children Services:

The county board of family and children services shall consist of five members who shall be appointed by the Director of the State Department of Family and Children Services on the recommendation and nomination of the county commissioner or board of commissioners, or other constituted fiscal or financial agent of the county. Such commissioner or commissioners, or fiscal or financial agent, shall recommend and nominate to the Director of the State Department of Family and Children Services three influential and respected citizens, recognized for their demonstrated interest in family and children services provided by the county department, for each position on the county board to be filled by the director: Provided, however, that no elected officer of the State or any subdivision thereof shall be eligible for appointment to the board .... The Director of the State Department may provide rules and regulations governing selection of persons to serve as chairman and vice chairman of said boards . . . . In the event that the county commissioner or commissioners, or county fiscal or financial agent, shall Jail to recommend and nominate persons to fill

617
vacancies on the county board as required by this CHapter, then the director may appoint members to fill such vacancies absent such recommendation and nomination .... (Acts 1937, pp. 355, 364; 1963, p. 222)
Additionally, your attention is called to Ga. Laws 1965, p. 385 (Ga. Code Ann. 99-2901 et. seq.) whereby the Georgia General Assembly enacted the "Georgia Public Assistance Act of 1965" which authorized the State Department of Family and Children Services:
... to establish any of the following categories of public assistance, and to adopt plans combining the administration of such categories of assistance as the department may elect:
(1) Old age assistance; (2) Aid to the blind; (3) Aid to the disabled; (4) Aid to families with dependent children; (5) Medical assistance to the aged; (6) Aid to the aged, blind and adult disabled persons under a combined plan adopted pursuant to Title X VI of the Federal Social Security Act; (7) Medical assistance under a combined plan adopted pursuant to Title XIX of the Federal Social Security Act.
Thus, the "Georgia Public Assistance Act of 1965" superseded the "Aid to the Blind Act of 1937" (Ga. Code Ann. 99-701 et. seq.), as amended; the "Old Age Assistance Act of 1937" (Ga. Code Ann. 99-601 et. seq.), as a mended; the "Aid to Dependent Children Act of 1937" (Ga. Code Ann. 99-901 et. seq.), as amended; and the "Aid to the Disabled Act of 1952" (Ga. Code Ann. 99-2001 et. seq.)., as amended.
Therefore, the above 1965 Act established in one Act the major programs that the State and County Departments of Family and Children Services had previously been administrating by separate statutory authority. In this amalgamation statute, the General Assembly of Georgia provided by subsection (b) of Ga. Code Ann. 99-2903 (Ga. Laws 1965, p. 385) for the administration of the above public assistance programs as follows:
(b) This Chapter shall be administered by the Department of Family and Children Services, including the county departments of family and children services acting under the

618
direction and supervision of the State Director of the Department of Family and Children Services. In administering this Chapter the State Department of Family and Children Services, including the county departments of family and children services acting under the direction and supervision of the State Department, shall:
(2) Establish and enforce such rules and regulations as may be necessary or desirable to carry out the provisions of this Chapter; ....
Finally, according to the Manual of Public Welfare Administration, Part Ill, Sec. VIII, H.3., page 22 (Green Sheet), the following Regulation has been promulgated by the Department of Family and Children Services:
It is the policy of the State and County Departments that an individual who receives a Public Assistance grant or whose relative within the degree of consanguinity and affinity described herein is a recipient of any grant under the Public Assistance programs of the State of Georgia is disqualified for membership on the County Board. Consanguinity and affinity for the purposes of this policy refer to spouse, brother, sister, parent, grandparent, children and grandchildren to the step degrees; aunt, uncle and cousin; mother-in-law, father-in-law, brother-in-law, sister-in-law and any member of the household. This policy is not formulated for the purpose of depriving any needy person of assistance. It is established for the protection of Board members in order to prevent embarrassment and adverse community relations. Any Board member finding himself in this type situation should submit his resignation to the State Director. The County Director will call any infraction of this policy to the attention of the Field Representative who in turn will make a report of the situation to the Chief, Field Social Services Section.
In a 1963 request which resulted in an official opinion of the Attorney General (Op. Atty. Gen., 1963, p. 256), the following questions were propounded concerning the Department of Family and Children Services:
I. Was it the intent of the legislature in stating that the

619
Director of the State Department of Family and Children Services shall select for each position on a County Board of Family and Children Services one of the three names submitted by the County commissioners, that he be given a choice? In other words, when only one, two or three of the names submitted out of a total of fifteen are qualified, this gives the Director no choice if he is required to select one of these names.
2. In the event that it is the legislative intent of this Act to provide the Director a choice, does he then have the right to reject the names of the few qualified who are submitted and, of his own motion, make appointments to fill the vacancies existing on the County Board of Family and Children Services?
In the request which resulted in the above-cited Attorney General Opinion, the then Director of the State Department of Family and Children Services stated (Op. Atty. Gen., 1963, pp. 256, 257) that:
Pursuant to this Act [Ga. Laws 1963, p. 222], we have requested and have received from most of the county departments recommendations to the County Boards of Family and Children Services and have made appointments in accordance therewith. However, one particular county has submitted names pursuant to this Act on four different occasions. The names submitted by the County Commissioners were, in the majority, disqualified in that they had relatives within the degree of consanquinity and affinity who were receiving assistance which prohibited their serving under a long established policy of this department. Other names submitted by the commissioners were disqualified in that they held another elective office in the county and were thus prohibited by law from serving. Still others were disqualified due to the fact that they were employed by another branch of the Government, either Federal, State or local, which is also contrary to the policies of the department.
In answering both of the a hove-stated questions in the affirmative, the 1963 Opinion of the Attorney General stated at page 258 that:

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I should also like to call your attention to the case of Southern Security Co. v. American Discount Co., 55 Ga. App. 736, 740 (1937), wherein the court held:
'When the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may and often have been construed to be directory.'
The 1963 Act here construed [Ga. Laws 1963, pp. 222, 223] does not declare what result shall follow non-compliance therewith, nor contain negative words importing a prohibition of any mode of proceeding other than that mentioned.
My view is that the language contained in this Act is directory and not mandatory and, therefore, you may as Director of the State Department of Family and Children Services name members of a county board in the event that any county board is not named within a reasonable time as provided in this section. (Section 10, Georgia Laws 1963, pp. 222, 223).
By Ga. Code Ann. 99-2903 (b) the State Department of Family and Children Services is authorized to "establish and enforce such rules and regulations as may be necessary or desirable to carry out the provisions of [the] Chapter." (Emphasis added.)
Therefore, it is my unofficial opinion that since the above-stated Regulation is neither arbitrary nor unreasonable that the Department of Family and Children Services, through its Director, was authorized to promulgate said Regulation if same was "necessary or desirable" for the ad ministration of the "Georgia Public Assistance Act of 1965" and by said Regulation to provide that a relative of a recipient of public welfare assistance benefits may not serve as a member of a County Board of Family and Children Services.

OPINION 68-433 (Unofficial)

October 14, 1968

You have enquired whether Georgia law provides for a recall

621
petition which would force an election for a constitutional officer before his term expired. I have reviewed the law and I am unable to find any such provision in Georgia.

OPINION 68-434

October 17, 1968

You have requested my optmon on whether an elector, when casting a write-in vote, must write out the full title of the office or whether the elector may use abbreviations in the title of the office.
The Election Code provides:
" . . . To vote for a person whose name is not on the ballot, manually write his name, accompanied by the title of the office involved, in the write-in column." (Emphasis added). Ga. Code Ann. 34-ll03(b).

It is clear from the above section that the Election Code does not specifically allow abbreviations to be used in the title of the office. However, the Election Code does provide:
"Notwithstanding any other provisions of this Title or Code to the contrary, if the elector has marked his ballot in such a manner that he has indicated clearly and without question the candidate for whom he desires to cast his vote, his ballot shall be counted and such candidate shall receive his vote, notwithstanding the fact that the elector in indicating his choice may have marked his ballot in a manner other than as prescribed by this Title or Code." Ga. Code Ann. 34-13 22A.

In view of the above section, it is my opinion that if the writein office has been abbreviated in such a way that the elector has indicated clearly and without question the office for which he voted, the above provision would require that the vote be counted.
Because of the myriad of possibilities involved, each decision must proceed on its own facts within the outlines of the above opinion. Needless to say, if my office can render assistance in any particular case, please do no hesitate to call.

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0 PINI0 N 68-435

October 18, 1968

You refer to a request of the Council of Superior Court Judges of the State of Georgia that when preparing the next biennium budget, a separate budget be prepared for the Superior Courts and Solicitors General of Georgia. You ask for an opinion of this office as to whether the Budget Bureau may comply with said request by either:

(1) showing separate line items under the Superior Court appropriation for (a) cost of operating the Superior Courts, and (b) cost of operating the office of Solicitors General, or

(2) establishing a new appropriation unit for the Solicitors General in the Judicial or Executive Branch.

OPINION

1. I am una ware of any legal impediment to separation of the budget of Solicitors General from the budget of the Superior Courts by showing separate line items under the Superior Court appropriation for (a) the cost of operating the Superior Courts and (b) the cost of operating the office of Solicitors General.

2. I am of the opinion that legislative action would be required before the office of Solicitors General could be established as a new and entirely distinct budget unit in the Judicial or Executive Branch.

DISCUSSION

As you point out in your letter, the General Assembly of Georgia has historically provided the necessary funds for salaries and expenses of Solicitors General under the appropriation of the Superior Courts. The tendency to regard the office of Solicitor General as being within the Judicial rather than Executive branch of government probably stems in the first instance from the fact the constitutional provisions establishing the office1 are found in Article VI of the Constitution, which pertains to the Judiciary. The office is not mentioned in Article V, which relates to the Governor and "other executive officers." In addition, the

l. Article VI, Section XI, Par. I and Par. I I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-4601, 2-4602).

623
statutory provisions relating to Solicitors (i.e. Ga. Code Ann. Ch. 24-29) are contained not only in Ga. Code Ann. Title 24 (entitled "Courts"), but are set forth in Part VI of said Title, which deals with the "Superior Courts."
Until now the providing of the necessary funds for salaries and expenses of Solicitors under the Superior Court appropriation has posed no particular problem. Because of the fact that Solicitors were compensated primarily under a "fee system," see Ga. Code Ann. 24-2904, only such items as their constitutional salary of $250.00 per annum2 their $3,600.00 per annum contingent expense allowance3 and their fees under the Uniform Reciprocal Enforcement of Support Act (URESA)4 were included in the Superior Court appropriation. Now, however, effective on June 30th following the expiration of the term of office "of each Solicitor General of the Superior Courts," the fee system is to be abolished and each such Solicitor General will thereafter receive an annual salary of $18,000.00. See Ga. Laws 1968, pp. 992, et seq. If the present system of providing the funds necessary for Solicitors' salaries and expenses under the Superior Court budget is continued, it is obvious that a much larger "Superior Court" appropriation will be required. The Council of Superior Court Judges is understandably concerned over the fact that his large increase will appear in their (i.e. the Superior Court) budget even though it in no way reflects any such increase in the actual cost of operating the Superior Courts per se.
In looking to the extent to which it would be possible to comply with the request of the Council of Superior Court Judges, I think the fact that statutes presently provide that both the contingent expense allowance of $3,600.00 per annum and the URESA fees of $50.00 per petition handled, shall be paid from the funds appropriated "for the operation of the Superior Courts," see Ga. Code Ann. 24-2904.1 and 99-932a, precludes any possibility of establishing the office of Solicitors General as a separate and distinct budget unit in the Judicial or Executive Branch. In this respect it is also important to note that even when all payments
2. Art. VI, Sec. XI I, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-4701 ).
3. Ga. Code Ann. 24-2904.1. 4. Ga.CodeAnn. 99-911a.

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of fees to Solicitors General ultimately are terminated pursuant to Ga. Laws 1968, pp. 992, et seq. (i.e. which in the case of each Solicitor General is on the June 30th following the expiration of his present term of office), the provision pertaining to the contingent expense allowance will continue in effect. Such allowance was expressly saved by Section 5 of the new Act. See Ga. Laws 1968, pp. 992, 994.
On the other hand, I am unaware of and have been unable to locate any statute or constitutional provision which would prevent separation of the budget of Solicitors General from the budget of the Superior Courts by showing separate line items under the Superior Court appropriation for (a) the cost of operating the Superior Courts and (b) the cost of operating the office of Solicitors General.

OPINION 68-436 (Unofficial)

October 18, 1968

You pose the question:

"Under the Georgia Real Estate Transfer Tax Laws, assuming a lease agreement is entered into pertaining to real estate located within the State of Georgia and without the State of Georgia as well as to personalty but the consideration recited is not segregated as to type of property or location of property and further assuming that the lease agreement creates an estate for years in that portion of the real estate located within the State of Georgia and is subject to the real estate transfer tax, how is the amount of tax to be paid determined?"

The Act uses the words "by which lands, tenements or other realty", (Ga. Laws 1967, p. 788, 1; Ga. Code Ann. 92-801), and "of the county in which such property is located", (Ga. Laws, 1968, p. 790, 5; Ga. Code Ann. 92-805). From the use of these words it is abundantly clear that the legislature did not intend to apply this tax to personalty or to real estate located without the State of Georgia.

The applicable rule on the rate of computation of the tax was enunciated in a recent unofficial opinion from this office to Mr. Charles Van S. Mottola of Newnan, Georgia, as beingthe

625
regulation adopted by the federal government on this point and reading:
"The tax is based upon consideration where it is definite in amount, or may be definitely determined. The tax is based upon net value determination where the amount of the consideration is indefinite, or is left open to be fixed by future contingencies."
On the question of what documents should be presented to the appropriate clerk, it would seem that an affidavit by the lessor, the lessee or an agent of either stating the pro rata portion of the consideration or the net value of the Georgia estate conveyed would be sufficient evidence of those facts in the absence of other information.

OPINION 68-437 (Unofficial)

October 21, 1968

You ask whether your New York State Pistol Carrier's Permit would be acceptable to authorize you to carry a pistol in Georgia.

At the present time Georgia has no reciprocal agreement with the State of New York concerning pistol carrying permits. It is therefore my opinion that you would have to obtain a Georgia permit in order to use your weapon here.

OPINION 68-438

October 21, 1968

This will acknowledge receipt of a letter from the Assistant Commissioner of Labor to this office wherein a request was made for an opinion in regard to the operation of a private employment agency.

In his letter, Mr. Gregory requested an opinion as to whether Mr. William 0. Ross, who is the second party to a franchise agreement, is, in fact, operating a private employment agency without a license.

Additionally, Mr. Gregory requested an opinion as to whether Mr. David H. Gray is in violation of the Georgia Private Employment Agency Act, especially Ga. Code Ann. 84-

626
4l02(q), by use of the said franchise agreement, a copy of which Mr. Gregory enclosed with his request letter.
According to the information supplied by your office, Mr. David H. Gray qualified for a license to operate a private employment agency under the "grandfather" clause of the Private Employment Agency Act (Ga. Code Ann. 84-4102 [b]). Thus, Mr. Gray was issued a license on March 29, 1968, to operate a private employment agency known as Cavanaugh-Gray & Company at the Realty Building, 24 Drayton Street, Savannah, Georgia, under the general management of Mr. Thomas A. Pope.
As you know, the cardinal rule in statutory construction is to look diligently for the intention of the General Assembly when enacting legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102(9). Therefore, in order to answer your inquiries, it is necessary to determine the intention of the legislature in enacting the Private Employment Agency Act and the purpose for the inclusion in said Act of certain provisions.
Your attention is called to Ga. Laws 1959, pp. 283, 284 (Ga. Code Ann. 84-4102(a) and 84-9967) which provides as follows:
No person shall open. operate or maintain an employment agency in the State of Georgia without first procuring a license from the Commissioner of Labor. Any person who shall open or conduct any such agency without first procuring a license shall be guilty of a misdemeanor and shall be punished as for a misdemeanor. (Emphasis added.)
According to the franchise agreement, a copy of which was enclosed with the above-mentioned request, Cavanaugh-Gray & Co., Inc., a Florida Corporation, entered into an agreement with William 0. Ross. By Paragraph No. 1 of said franchise agreement, Cavanaugh-Gray & Co., Inc., as the Licensor, granted to William 0. Ross, as the Licensee, subject to the conditions of said franchise agreement:
. . . the exclusive right to use said name ['Cavanaugh-Gray & Co.'] and/ or mark in the operation of a Cavanaugh- Gray & Co., Agency and/or office within the following described territory:
This franchise is to operate one (l) or more Cavanaugh-Gray

627
& Co., Agencies and/ or offices in Chatham County, State of Georgia. The Licensor reserves the right to approve the location of the office or offices operated under this agreement.
Also, by Paragraph No. 9 of said franchise agreement, the services to be performed under the franchise agreement are stated as follows:
Licensee shall conduct under this franchise agreement, a general employment agency as authorized under the laws of the hereinabove described territory and shall operate said business at all times according to the laws, rules, and regulations governing the regulation of a private employment agency.
By Paragraph No. 5 of said franchise agreement, the Licensee, Mr. Ross, agreed that he would:
. . . operate the business to be conducted under [said] agreement at all times in accordance with the CavanaughGray & Co., written Operational Procedure and Instructions furnished by Licensor, . . . .
Mr. Ross, as the Licensee, also agreed in Paragraph No. 5 to " . . . pay all costs of the operation of [his] business . . ." and " . . . to keep [his] office open for business a minimum of five days per week for a period of eight (8) hours each day, saving and excepting legal holidays, both national and local; said hours to be the regular and ordinary business hours of the area in which said Licensee operates."
Also, by Paragraph No. l3 of said franchise agreement, the Licensee, Mr. Ross, agreed to:
... devote his full time and best efforts to the private employment agency established hereunder and to this end, Licensee generally agrees in addition to the foregoing, so long as this franchise is in force, he will make the business operated hereunder his sole endeavor and he will not engage in the management, operation, and/ or direction of any other business or businesses of whatsoever kind, nature, or description without written consent of Licensor.
By Paragraph No. 14 of said franchise agreement, the Licensee, Mr. Ross, agreed to:

628
. carry Workmen's Compensation Insurance on his employees as required under the laws of the above named state [Georgia]; and ... pay all licenses and bonds required by the above named state and other governmental agencies for the operation of his business. . . . [Emphasis added.]
Furthermore, Mr. Ross, by said Paragraph No. 14, agreed to " ... carry public liability insurance protecting both parties hereto, jointly and severally, . . . . "
Finally, by Paragraph No. 17 of said franchise agreement, the Licensor, Cavanaugh-Gray & Co., Inc., and the Licensee, Mr. Ross, agreed, in regard to the relationship between said Licensor and Licensee, that:
... this agreement does not create the relationship of partners between Licensor and Licensee, or of principal and agent, and/ or of joint venturers.
Your attention is now called to Ga. Laws 1959, pp. 283, 284 (Ga. Code Ann. 84-4102 [d]) which provides that, inter alia, an applicant for a license to operate a private employment agency " ... shall file with the Commissioner of Labor a written application stating . . . the name of the person who is to be responsible for the general management of the office; . " Also, by Ga. Laws 1959, pp. 283, 286-287 (Ga. Code Ann. 844102 [j]) provision is made that:
There shall appear on the license the name of the licensee, the location of the office where the employment agency is to be conducted, the name of the person who is to be charged with the general management, the name under which the employment agency is to be carried on.
As will be noted from the immediately above-quoted statutory sections, it does not appear that the legislature intended that a licensee, personally, be actually in charge of the day-to:day business operation of the private employment agency since the provision is made that an applicant shall include in his application for a license, and that said license shall contain on the face of same, the person who will be " . . . charged with . . ." or ". . . responsible for the general management of the office."
However, from a review of the franchise agreement between the employment agency and Mr. William 0. Ross, it is my official

629
opinion that the agreement between said parties extends beyond the general management of the office of the private employment agency. Additionally, Mr. Thomas A. Pope and not Mr. Ross is listed on Mr. Gray's license as the person having the general management of the agency.
The major involvement of Cavanaugh-Gray & Co., Inc., in the operation of the business is to provide forms, office supplies, office layouts, some office furniture, and a method for operating the business. Also, Cavanaugh-Gray & Co., Inc., supplies the trade marks and service marks under which the Licensee, Mr. Ross, operates.
However, as will be noted, Mr. Ross, as the Licensee, is, pursuant to the provisions of the above-discussed franchise agreement, in complete charge of the operation and conduction of the employment agency so long as he uses the supplies, forms and methods provided by the Licensor. Although, the business is under the general management of Mr. Pope, Mr. Ross, pursuant to the franchise agreement, is the owner and operator of the business.
In answer to the first question posed by Mr. Gregory, it is my official opinion that the Licensee, Mr. Ross, is actually the per~on who is now operating and maintaining, a private employment agency within the terms of the hereinabove discussed statutes, and that Mr. Ross is the person who, under the Georgia statutes, is required to be licensed to operate, maintain and conduct the private employment agency in question. Thus, it is my official opinion that Mr. Ross must make application for and obtain a license in order to operate the private employment agency in Savannah, Georgia.
The second inquiry was as to whether Mr. David H. Gray transferred his license in violation of Ga. Code Ann. 844102(g). By Ga. Laws 1959, pp. 283, 289 (Ga. Code Ann. 844102 [g]) the following provision is made in regard to the transfer of a license:
No license granted under the terms of this act shall be transferable, but an employment agency may, with the approval of the Commissioner of Labor, any time, incorporate or admit a partner or partners to the business or profession or make changes in a corporation, but no employment agency shall permit any person not mentioned

630

in the application for a license to become connected Willi the employment agency, as a partner or as an officer of a corporation, unless the written consent of the Commissioner of Labor shall first be obtained. Such consent may be withheld only for any reason for which an original application for a license might have been rejected, if the person or persons in question had been mentioned therein.

It should be noted that the above-mentioned license was issued to Mr. Gray to operate an employment agency known as "Cavanaugh-Gray & Co., Inc. Regardless of whether an actual transfer of the license has occurred, it is my official opinion that Mr. Gray, in executing the franchise agreement, violated Ga. Laws 1959, pp. 283, 289 (Ga. Code Ann. 84-4102 [g]) in that

the Commissioner of Labor has not, according to the information which you supplied to this office, authorized the transfer of the license from Mr. Gray to the corporation.

OPINION 68-439 (Unofficial)

October 23, 1968

You have requested information concerning people who live just across county lines or own property on county lines although their dwelling is in one particular county. You advise that these people do all of their business in the county other than their dwelling and they wish to maintain their registration in this second county although admittedly their dwellings are in the first county.

As you are probably aware, under the Georgia Election Code the term "residence" means "domicile." Ga. Code Ann. 34103(aa). Since Ga. Code Ann. 79-401 provides that the domicile of a person is the place where a person's family permanently resides and Ga. Code Ann. 34-602 provides that a person may only register in the county of his domicile, it is my unofficial opinion that a person may not maintain his registration in a county other than that of his domicile.

OPINION 68-440

October 25, 1968

This will acknowledge receipt of a letter setting forth certain facts and then posing the following questions:

1. May the Commissioner of Labor in his public capacity

631

commit the State of Georgia to long term leases of property while at the same time in his private capacity, he is a principal officer of a corporation which acts as co-agent or co-broker for the landlords of the leased premises?

2. May a public official profit, either directly or indirectly, from business of the State entrusted to his care?

3. Is not such a contract contrary to public policy, illegal and void?

4. How may the interests of the State of Georgia be protected?

The following facts have been ascertained in respect to several leases between the Georgia Department of Labor and various owners of property in Atlanta, Georgia. Each of the leases under consideration was executed at the time when Mr. Ben T. Huiet, Sr., was the Commissioner of Labor.

The leases in question cover property located at the following two (2) addresses:

522 West Peachtree Street, N. W. Atlanta, Georgia

141 Auburn Avenue, N.E. Atlanta, Georgia

Space at the above locations was obtained by the Em-ployment Security Agency of the Georgia Department of Labor for use as local offices. Additionally, in our investigation, information was obtained in regard to property located at 161 Peachtree Street, N. E., Atlanta, Georgia. This property was also leased by the Employment Security Agency, Georgia Department of Labor, when Mr. Huiet was Commissioner of Labor, for use as a local office. The original lease on this property expired on April 30, 1967, and was renegotiated. The real estate broker on each of these three leases was Allan-Grayson Realty Company, 40 Pryor Street, S. W., Atlanta, Georgia. On each of these three leases a cobrokerage arrangement existed between Allan-Grayson Realty Company (hereinafter sometimes referred to as Grayson) and the Realty Company of Ben T. Huiet & Sons, Inc., (hereinafter sometimes referred to as Huiet & Sons). The following information concerning the three leases has been ascertained:

632

Property
Monthly Rental Term of Lease

161 Peachtree Street, N. E., Atlanta, Ga.
$2,589.22
4/29/624/30/67 five (5) year lease

Total Monthly Com-

mission on Lease

5% ($129.46)

Percentage of Commission Split
Commission to A !Ian- Grayson

60% AllanGrayson; 40% Huiet & Sons
$77.68

Monthly Commission

To Ben T. Huiet &

Sons,lnc.

$51.78

141 Auburn Avenue, N.E., Atlanta, Ga.
$600.00

522 West Peachtree Street, N.W., Atlanta, Georgia $2,151.67

5/15/62-
5/14/72 ten (10) year lease

2/16/652/ 15/70 five (5) year lease with a five (5) year option at same rental for 2/16/70-2/15/75

5% ($30.00) 5% ($107 .58)

50% AllanGrayson; 50% Huiet & Sons

80% AllanGrayson; 20% Huiet & Sons

$15.00

$86.06

$15.00

$21.52

Ben T. Huiet & Sons, Inc., has received confirmed co-brokerage payments on the above three leases as follows:
161 Peachtree Street June 1962 through April1967: $2,828.92;
141 Auburn Avenue December 1962 through September 1968: $1,005.00; and,
522 West Peachtree Street March 1965 through September 1968:$914.60.
Thus, a confirmed total of $4,748.52 has been paid in cobrokerage payments by Allan-Grayson Realty Company to Ben T. Huiet & Sons, Inc., on the above leases. You will note that the above sums suggest that payments were not made for some months. Since Grayson was unable to confirm by cancelled check such payments to Huiet & Sons, those few payments were not

633
included. However, such omission does not imply that same were not paid, only that definite confirmation of same could not be made.
It has also been determined that the ownership of the corporation known as Ben T. Huiet & Sons, Inc., is represented by 30 shares of common stock of which one share is now held and was held by Ben T. Huiet, Sr., at the time he served as the Georgia Commissioner of Labor. Additionally, according to the records of the Corporation Division of the Office of the Secretary of State, the Certified Statements for Annual Registration of Ben T. Huiet & Sons, Inc., for 1962, 1963, 1964, 1966 and 1967 show Ben T. Huiet, Sr., as the President of said Corporation. Apparently, no Registration Statement was filed for the year of 1965.
The 1966 Registration shows only Ben T. Huiet as the President; however, the Registration shows Ben T. Huiet, Jr., as the Vice- President of the Corporation, indicating, in my opinion, that the name "Ben T. Huiet" refers to Ben T. Huiet, Sr.
According to the information obtained in the investigation of these leases, as well as Mr. Huiet's own statement, Mr. Huiet did not receive any direct pecuniary profit or benefits from the cobrokerage arrangements between Grayson and Huiet & Sons. Our review of the financial records of Huiet & Sons did not disclose any payments to Mr. Huiet. The only known pecuniary profit or benefit derived by Mr. Huiet was the possible indirect pecuniary benefit of an appreciation i.n the value of the stock of Ben T. Huiet & Sons, Inc., due to the income from said co-brokerage commissions. Since Ben T. Huiet & Sons, Inc., is a family-owned corporation with only thirty (30) shares of stock, there would appear to be no ready market for the purchase or sale of such stock. Thus, it would be almost impossible to ascertain in any reliable manner, the value of the appreciation, if any, of this stock as a result of the income from the co-brokerage arrangements.
Finally, Mr. Huiet, Sr., denies any knowledge concerning the co-brokerage commission arrangements between Grayson and Huiet & Sons on the above leases.
It should be noted that there has been no evidence discovered that would show any actual involvement by the owners of the above property in these co-brokerage arrangements.

634
The first question discussed will be whether the activity of Ben T. Huiet, Sr., when serving as Commissioner of Labor for the State of Georgia, within the above factual situation, constituted a violation of any statute of Georgia. Another question is whether the above-described leases are legally binding upon the State Department of Labor. Also, the procedure whereby the State of Georgia may best protect its interest in this matter will be discussed.
In regard to the relationship between either elected or appointed State officers or State employees, and State Government, the statutes generally known as the "Honesty in Government" Acts must be considered. In 1956, the General Assembly enacted, by Ga. Laws 1956, p. 60 (Ga. Code Ann. 89-913 through 918), the first of such statutes.
Basically, the 1956 Act applies to appointive State officials and employees and to members of State boards, bureaus, commissions and authorities, not to elected officials.
Since Ga. Code Ann. 89-913 refers only to ". . . any fulltime appointive State official or employee, . . . " it is my opinion that said section is not applicable to Mr. Huiet since Mr. Huiet, as the State Commissioner of Labor, was an elected State official.
Next, your attention is called to Ga. Code Ann. 89-914 which provides as follows:
No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall make any contract in any capacity whatsoever to furnish any goods or supplies, or both, to the State, except after competitive bid thereon. No such person shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon.
On September 15, 1949, Mr. Huiet assumed membership on the State Employees Retirement Board and served on same until June 30, 1968. Therefore, Mr. Huiet was a member of a "board" that falls within the definitions contained in the above-stated statute at the time of the execution of the leases.
However, in regard to the first sentence of the(statute, the leases are, in my opinion, "services" and not ". . . goods or supplies,"

635
so th...~ the first sentence of the above section is not applicable to Mr. Huiet. However, in the second sentence, the prohibition is against acting as a ". . . dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, except after competitive bid thereon."
Nevertheless, since no evidence was discovered in the investigation of these leases which would indicate that Mr. Huiet personally acted as "... a dealer, agent or broker, or in any other manner, . . ." for Ben T. Huiet & Sons, Inc., under the facts known to me, said section, in my opinion, is not applicable to Mr. Huiet.
By Ga. Code Ann. 89-915 the following provision is made as to members of State boards, bureaus, commissions or other State agencies:
No member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall act as dealer, agent or broker, or in any other manner, in connection with the sale of goods or services, or both, to the State, unless such person operates a regularly established business enterprise which, when selling such goods or services, or both, to the State, meets all the legal requirements connected therewith relative to submission of bids, posting of bonds, quality of goods or services, or both, and all other requirements in connection with such transactions.
Since no evidence indicated that Mr. Huiet acted as a " .. dealer, agent or broker, or in any other manner, . . ." for Ben T. Huiet & Sons, Inc., it is my opinion that the above-quoted section is likewise not applicable to the matter being considered. Ga. Code Ann. 89-916 prohibits members of ". . . any State board, bureau, commission or other State agency by whatever name called . . . " from engaging ". . . in any transaction with . . ." same. This section would not apply since the leases were not made with the board on which Mr. Huiet served.
Next, your attention is called to Ga. Laws 1959, p. 34 (Ga. Code Ann. 26-5002 to 26-5028) for the 1959 "Honesty in Government" Act. It applies to elected officials. In Ga. Code Ann. 26-5004, reference is made only to the sale of " . . . goods, wares or merchandise, personal property or other chattels

636
." No reference is made to "services," so said section is not applicable to Mr. Huiet since only a "service" was involved.
By Ga. Laws 1959, pp. 34, 37 (Ga. Code Ann. 26-5008), the following prohibition is stated:
Every contract, combination, or cons piracy, 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 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.
The above-quoted section does cover transactions for "services." However, under the facts discovered in the investigation of the leases in question, no evidence was found which would prove that there was any action on the part of the persons involved to establish that there was a " . . . restraint of trade . . . " or any ". . . restraint of free and open competition . . ." in the leases involved. In order to declare the leases illegal, and thus void under the above-quoted Code section, in my opinion, it would be necessary to prove a violation of this statute and evidence sufficient to carry the burden of proof in proving a violation thereof was not discovered.
By Ga. Laws 1964, p. 261 (Ga. Code Ann. 26-SOOla), the General Assembly of Georgia enacted an "Honesty in Government" Act which addresses itself to a "... political subdivision, municipal or other public corporation or other public organization, of the State of Georgia, . . . ." It is my opinion that the above 1964 Act was intended to apply to such other governmental entities and not to State officials.
A Code of Ethics for Government Service was enacted by the 1968 General Assembly of Georgia which provides, in part, that (Ga. Laws 1968, pp. 1369-1371):
Any person in government service should:
VII. Engage in no business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties.

637
Although the above provision had not been enacted at the time the matters being considered transpired, it is my opinion that had said provisions been effective, Mr. Huiet, as a stockholder and President of Ben T. Huiet &Sons, Inc., would have been obligated to inquire into the activities of Ben T. Huiet & Sons, Inc., more closely in order to be aware of the business transactions of the corporation. Upon discovering the transactions in question, Mr. Huiet would have been obligated to determine if such transactions caused him to violate the above provision of the "Code of Ethics for Government Service."
Therefore, in answer to your question, it is my official opinion that based on the evidence available, no Georgia statutes were violated by the co-brokerage arrangements between Ben T. Huiet & Sons, Inc., and Allan-Grayson Realty Company in regard to Mr. Ben T. Huiet, Sr., who, at the time of said co-brokerage arrangements, was the Georgia Commissioner of Labor.
However, in Macon v. Huff, 60 Ga. 221 (1878), the public policy of Georgia in regard to the questions under consideration was judicially stated in Headnote No. 1, as follows:
H. was mayor of Macon and ex-officio president of council. Whilst in office he contracted with council to lease the city park for five years; and for an annual sum paid him to fence, drain and keep the same in repair for that period:
Held, that as it was his official duty as mayor to see to it that as contractor he discharged the duties of this executory and continuous contract for five years, public policy forbids that he take a contract which it is his official business to see faithfully perform_ed, and that therefore the contract is illegal. [Footnotes omitted.]
The above public policy was found by the Court to be evidenced in an 1801 Act which, in essence, provided that no Judge or justice in any Court, nor an ordinary, justice of the peace or presiding officer of any inferior Court or commission could sit in any cause or proceeding in which he was pecuniarily interested. The public policy was also found expressed in an Act of 1850 which provided that no sheriff or any other officer who discharged a similar duty could purchase at his own sale. Additionally, the Court found the public policy expressed in Harrison v. McHenry, 9 Ga. 164 (1850), where the Georgia Supreme Court held, as stated in

638
Headnote i'io. 1, that "a sheriff cannot purchase at his own sale, neither for himself nor as agent for another, but such purchase is void." After citing other legislative and judicial examples, the Court in Macon v. Huff stated at page 229 that:
So that the current of Georgia policy, both in legislative and judicial channels, runs steadily in one direction and to one point, that no man who is agent or trustee for another, whether a private or public agent or trustee shall have the opportunity or be led into the temptation to make profit out of the business of others entrusted to his care, by bargaining with himself, directly or indirectly, in respect to that business.
However, the Court also stated that since he who seeks equity must do equity that the Mayor should be paid by the city for that which he properly spent advantageously for the city since the city had reaped the benefits of such expenditures. 60 Ga. 221, 231-232. Cf: Cochran v. City of Thomasville, 167 Ga. 579 (1928); Mayor and Council of Hoganville v. Planters Bank, 27 Ga. App. 384 (1920); Welsch v. Wilson, 218 Ga. 843 (1963); Trainer v. City of Covington, 183 Ga. 759 (1937); Hardy v. Mayor and Council of Gainesville, 121 Ga. 327 (1904) and Montgomery v. City of Atlanta, 162 Ga. 534 (1926). In the Montgomery case, supra, a paving contract was declared null and void which was entered into by the City and a Corporation in which a member of the City Council was a large stockholder. Although there was a City charter provision which declared that it was unlawful for a member of the City Council to be either directly or indirectly interested in any contract with the City, the Court stated:
By the common law and independent of statute, this contract is contrary to public policy and illegal. One who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself. This doctrine is based upon principles of reason, morality, public policy. No public agent shall have the opportunity or be led into the temptation to make profit out of the public business entrusted to his care by contracting with himself, directly or indirectly, in respect to such business. 162 Ga. at p. 546.
Therefore, this line of decisional law has evolved irrespective of statutory prohi bitations. In the case under consideration, the actual lease contracts were between the Georgia Department of

639
Labor and the actual property owners. Since no ~vidence was discovered which would indicate that Mr. Huiet had any interest in the ownership of the properties involved, these contracts could not have resulted in a pecuniary profit to Mr. Huiet. The possible pecuniary benefit, already discussed as being only indirect via the appreciation in the value of the stock of Ben T. Huiet & Sons, Inc., evolved upon Mr. Huiet only as a result of the co-brokerage arrangements with Grayson. Thus, the situation being discussed is different from those cases cited above whereby a public officer contracted with the governmental unit in which he held a position.
However, it is my official opinion that the above discussed principles whereby a contract is contrary to public policy wherein a public official enters into a contract with the governmental unit he represents applies to the co-brokerage arrangement between Ben T. Huiet & Sons, Inc., and Allan-Grayson Realty Co. Therefore, I suggest that you cease paying to Allan-Grayson that portion of the commissions which represents that amount being paid by Grayson to Ben T. Huiet & Sons, Inc., pursuant to the co-brokerage agreements.
Finally, irrespective of the involvement of these leases by Ben T. Huiet and Ben T. Huiet & Sons, Inc., said leases appear to violate Art. VII, Sec. Ill, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-5601) which provides, in part, as follows:
No debt shall be contracted by, or on behalf of, the State, except to supply such temporary deficit as may exist in the treasury in any year for necessary delay in collecting the taxes of that year, to repel invasion, suppress insurrection and to defend the State in time of war, or to pay the existing public debt; . . . .
Since the leases involved are for from five (5) to ten (10) years, it is my official opinion that said leases represent a ". . . debt . . . contracted by, . . . the State, . . . " in excess of one (l) year for an item not specifically listed in the above constitutional provision as an exemption from the constitutional limitation although the funds used to make the payments on the leases come from the Federal Government. Therefore, it is my official opinion that a strong argument could be presented in support of cancellation of the leases. Cf: Barwick v. Roberts. 188 Ga. 655 (1939); State of Georgia v. Blasingame, 212 Ga. 222 (1956); and State Ports Authority v. Arnold, 201 Ga. 713 (1947).

640

OPINION 68-441

October 25, 1968

This is in reply to your letter requesting an opinion concerning the proper application of the licensing section of the "Used Car Dealers Registration Act." Specifically you asked whether the additional fee required in the third paragraph of Subsection (c) of Section 8 of the Act is applicable to those dealers brought under the Act by the amendment approved February 20, 1968 (Ga. Laws 1968, p. 23, et seq.).
The "Used Car Dealers Registration Act" as enacted in 1958 applied only to those dealers in counties with populations in excess of 30,000 and provided for a license fee of $25.00 for each principal place of business and $5.00 for each supplemental license. The Act became effective on April 1, 1958, and all dealers under the Act were required to obtain a license by July 1, 1958.
In 1960 this Act was amended to narrow its coverage to those dealers in counties with populations in eqcess of 50,000 and to provide for an additional licensee fee for certain dealers who had not previously registered (Ga. Laws 1960, p. 801, et seq.). Subsection (c) of Section 8 was amended to require in some cases additional license fees. The third paragraph of this Subsection imposed an additional fee of $75.00 for each principal place of business and $55.00 for each supplemental license on those dealers required to register who had not previously registered but had been in business since April 1, 1958, the date the original Act became effective.

The amendment of 1968 among other things repealed the population restrictions and gave the Act state-wide application. (Ga. Laws 1968, pp. 23, 29). The question to be determined is whether the penalty provision contained in the third paragraph of Subsection (c) of Section 8 is applicable to those dealers brought under the Act by the 1968 amendment.

A statute needs no interpretation when its meaning is plain and unambiguous. Central of Georgia Railroad Company v. Tucker, 99 Ga. App. 52 (1959). In any event the construction of a statute must square with common sense and sound meaning. Blalock v. State, 166 Ga. 465 (1928). Common sense and sound reasoning dictate that dealers brought under the Act by the 1968 amendment are not subject to the above-stated penalty provision.

641
The penalty in question was adopted to penalize those who had been subject to the Act but had failed to register and obtain a license. The penalty provision is still effective as to those dealers who were under the Act when the 1960 amendment was adopted. It cannot, however, apply to those dealers brought under the Act by the 1968 amendment since until the approval of the 1968 amendment they were excluded from its operation and not required to register. Therefore, the license fee of those dealers required to register by the 1968 amendment and who were doing business prior to its approval shall be as the Act provides, $25.00 for each principal place of business and $5.00 for each supplemental license for each car lot not immediately adjacent to the principal place of business.

OPINION 68-442

October 28, 1968

This is in response to your request for an official opinion concerning the legality of such games as "Double Dino Dollars," operated by Sinclair Refining Company; "Winning Ticket," operated by Humble Oil and Refining Company; "Cash Roulette," operated by Pure Oil Company; "Winners Circle" and "Mr. & Mrs. NFL," operated by American Oil Company; "Chance of a Lifetime Sweepstakes," operated by Gulf Oil Corporation; "Famous Americans," operated by Shell Oil Company; "Let's Go to the Races," operated by Colonial Stores and automobile giveaways operated by various independent service stations, such as chances on a 1968 Ford Torino given away by Wallace Service Stations and other such giveaways in which you pose three questions:

"1. Are the 'giveaway programs' as set forth in this correspondence and the exhibits and evidence transmitted herewith a violation of the criminal laws of the State of Georgia?
"2. In the event your answer to inquiry no. I is in the affirmative, what criminal laws do said 'giveaway programs' violate?
"3. In the event your answer to inquiry no. I is in the affirmative, are vehicles and other conveyances operated to transport or convey the paraphernalia used in such games

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contraband and subject to seizure as prescribed in the Act approved March 9, 1945 (Ga. Laws 1945, p. 351 )?"

0412

Exhibits consisting of the cards, tickets, stubs, etc. to participate in the various games were submitted with the request.

The Georgia statutes provide:

"26-6501. (397 P.C.) Sales, etc., of lottery tickets.-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, gift enterprise, or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, shall be guilty of a misdemeanor. (Acts 1880-1, p. 62.)"

"26-6502. (398, 400 P.C.) Carrying on a lottery.-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 things, shall be guilty of a misdemeanor. (Acts 1877, p. 112.)"

Many of the cases in the early part of this century when dealing with the above statutes seemed to make a distinction between a lottery and a gift enterprise.

The Supreme Court in Meyer v. The State, 112 Ga. 20 (1900), on page 22 stated that:

"Any scheme or device operated by a person, by which one participating therein might either lose the money invested or get more than his money's worth, the operator retaining the money so lost, is a scheme or device for the hazarding of money, within the meaning of the section of the Penal Code above quoted."
The Court on page 23 defined a gift enterprise as:
" . . . the fashionable sporting artifice, . . . by which a merchant or tradesman sells his wares for their market value, but, by way of inducement, gives to each purchaser a ticket, which entitles him to a chance to win certain prizes, to be determined after the manner of a lottery, . . . ."

Several years later the Supreme Court in the case of Russell v. Equitable Loan & Security Co., 129 Ga. 154 (1907) quoted the above sections and said:

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"These statutes are directed against lotteries, gift enterprises or similar schemes."
The Supreme Court in Whitley v. McConnell, 133 Ga. 738 (1909) at page 740 stated:
"That a lottery or gift enterprise scheme is added to legitimate business to draw customers or buyers by appealing to the hope by securing something by chance, beyond the article actually bought, does not sanctify such an appeal to the gambling disposition so common in human natures, or make the agreement lawful."
In Jarman v. State, 54 Ga. App. 738 (1936), the Court held:
"1. A motion-picture show operator who gives in addition to the admission to the show, opportunity to draw by lot or chance a prize of money or property, is guilty of conducting a lottery. Mutuality of risk is not necessary to constitute a lottery. The purchaser of the ticket may get value received and the whole risk be assumed by the operator.
"2. When the general scheme of such drawing is that only those who have purchased tickets participate therein and are entitled to win the prize, such scheme does not lose its identity as a lottery because some may participate in the drawing who have not bought tickets."
Another case dealing with a motion-picture "bank night" was Barker v. State, 56 Ga. App. 705 (1937). In that case the court on pages 707 and 708 stated the general distinction between a lottery and a gift enterprise:
"Generally speaking, and under the oldest enacted statute with reference to lotteries, which appears in the Code, 266502, there must be in a lottery a union of three elements-consideration, chance, and prize; and where a gift enterprise lacked a consideration which is one of the essential elements, it is not a lottery, except where the necessity of said element has been eliminated by a statute."
However, the Court proceeded to question whether or not there is in fact a consideration in these schemes where no purchase is necessary to participate but it did not rule on such and held that under the Georgia statutes both those with and without consideration are a criminal offense.

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Bloodworth v. Gay, 213 Ga. 51 (1957) was a case tn which a tobacco warehouse had given to some persons who sold tobacco through the warehouse a number of tickets, each representing a chance on an automobile, in proportion to the sales price of tobacco. The Supreme Court did not make a distinction as to whether this was a lottery or gift enterprise and it did not discuss consideration. However the Court did cite the Barker case, supra, and Ga. Code Ann. 26-6501 but it did not cite the Jarman case or Ga. Code Ann. 26-6502.
In the recent case of Boyd v: Piggly Wiggly, 115 Ga. App. 628
(1967), the Court holds in headnote 3 that:
"Consideration as an ingredient of a prohibited lottery or gift enterprise is shown when there is present, in the actual working of the sal~s promotion scheme a class of persons, who in addition to receiving or being entitled to chances on prizes, supply consideration for all the chances in bulk by purchasing whatever the promoter is selling, whether the purchasers were required to do so or not under the wording of the promoter's rules."
From this line of cases it would appear that the Supreme Court still may make a distinction between a lottery and a gift enterprise and that distinction if it still exists is the lack of consideration. This seems to be borne out by the fact that the Supreme Court in the Bloodworth case did not cite the Jarman case but did cite the Barker case which did not rule on the question of consideration.
On the other hand, the Court of Appeals either says that there is no distinction as there is consideration or it says that all of these schemes are lotteries.
In any event it is clear that both are a violation of the Georgia law and that the games presently under discussion are a violation of the Georgia law.
Now as to question three, the Georgia statutes provide:
"26-6507. Lottery and gambling devices declared contraband.-All vehicles and conveyances of every kind operated to transport or convey in any manner any lottery ticket, lottery book, lottery ribbon or any article or thing used in keeping, maintaining, or in carrying on any lottery

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or other scheme or device or hazarding money or thing of value, are hereby declared to be contraband and the said use of any vehicle or conveyance for said purpose. is hereby prohibited. (Acts 1945, p. 351.)"
"26-6508. Seizure of lottery services; condemnation, sale, and application of proceeds.-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 thtng shall be seized. . . . "
If the older Supreme Court cases are followed, this is not a lottery; but if the new Court of Appeals cases are followed, then it is a lottery.
The question which now arises is whether there can be condemnation in the case of a gift enterprise. The term is not used in the condemnation section as it is in Ga. Code Ann. 26-6501. Both of these sections use the words "used in keeping, maintaining, or carrying on a lottery or other scheme or device for hazarding money or thing of value."
The Supreme Court does discuss risk in the Meyer case, supra, on page 23 when it stated:
"It is true that a bet does imply risk, but it does not necessarily imply risk in both parties. There must be between them a chance of gain. and a chance of loss; but it does not follow that each of the parties to the bet must have both these chances. If, from the terms of the engagement, one of the parties may gain but can not lose, and the other may lose but can not gain, and there must be either a gain by the one or a loss by the other, according to the happening of the contingency, it is as much a bet or wager as if the parties had shared equally the chances of gain and of loss."
This may be sufficient to satisfy the "hazarding of money or thing of value" requirements. However, it is noteworthy that in the Bloodworth case the Supreme Court did not cite Ga. Code Ann. 26-6502 which also has a "hazarding of any money or valuable thing" requirement.
Since there may be some question as to whether condemnation will lie in a gift enterprise scheme another possible approach

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would be for the Attorney General or Solicitor General to file a suit to enjoin the offenders from continuing to carry on a public nUisance.
The Supreme Court, in Gullatt v. State. ex. rei. Collins, 169 Ga. 538 (1929), said in headnotes 3 and 4:
"3. 'A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effect on individuals.' The maintenance of a gaming-house or a gaming-place is a public nuisance.
"4. A court of equity will, in a proper case, exercise its jurisdiction by injunction to restrain a public nuisance. Generally, a public nuisance gives no right of action to any indi vid ua1, and equity generally will not interfere with the administration of the criminal laws; but, under the Civil Code, 5330, injunction will lie in the name of the State to enjoin such a nuisance. Even before the adoption of our first code this court held that a court of equity has jurisdiction, and in a proper case may by injunction restrain a public nuisance upon information filed by the solicitor-general."
Also, see Forehand v. Moody, 200 Ga. 166 (1945), and Mabry v. Shikany, 223 Ga. 513 (1967).
It would seem that Ga. Laws 1931, pp. 7, 39; Ga. Code Ann. 40-1610 would be sufficient to authorize the Governor to authorize the Law Department through the Attorney General to file such a suit.

OPINION 68-443 (Unofficial)

October 29, 1968

You ask whether or not you are obligated to pay ad valorem taxes assessed for school purposes upon property which you own in more than one county.

Ga. Code Ann. 92-101 provides:
"All real and personal property, whether owned by individuals or corporations, resident or nonresident, shall be liable to taxation, except as otherwise provided bylaw."

The Georgia Constitution prohibits any exemption from

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taxation except those set out in the Constitution. There is no provision for exempting property owned with respect to school taxes where the owner owns other property in other counties upon which he pays such taxes.

OPINION 68-444

October 30, 1968

This is in response to your request for my official opinion as to whether the Honorable Luther C. Hames, Jr., Judge of the Superior Court, Cobb Judicial Circuit, must become a member of the Trial Judges and Solicitors Retirement Fund (Ga. Laws 1968, p. 259) or, if not, whether he may elect to participate in the Superior Court Judges Retirement Fund of Georgia. Ga. Code Ann. 24-2608a, et seq.
I am reliably informed that Judge Hames is a former Solicitor General, was appointed Solicitor General Emeritus effective January 6, 1967, was appointed Judge of the Superior Court, Cobb Judicial Circuit, effective October 21, 1968, and has applied for and been granted, pursuant to Ga. Code Ann. 24-2904(a), a suspension of his rights as Solicitor General Emeritus.

Based upon the foregoing facts, which are assumed to be correct, I am of the opinion that Judge Hames is not required to become a member of the Trial Judges and Solicitors Retirement Fund and may elect to participate in the Superior Court Judges Retirement Fund of Georgia if he begins making the required contributions to the latter fund within 90 days after taking office as Judge of the Superior Court.
Subject to certain exceptions not here applicable, the Act creating the Trial Judges and Solicitors Retirement Fund provides that any person becoming a superior court judge or solicitor general for the first time after June 30, 1968, shall become a member of that fund (Ga. Laws 1968, pp. 259, 263, section 8(a)) and further provides that such a person shall not be eligible to be appointed judge emeritus or solicitor general emeritus. Ga. Laws 1968, pp. 259, 264, 9. Since Judge Hames had served as Solicitor Gene.ral prior to June 30, 1968, I am of the opinion that he is not a person becoming a superior court judge or solicitor general for the first time after June 30, 1968, and, hence, is not a person who is required to become a member of that fund or a

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person who is rendered ineligible to be appointed judge of the superior courts emeritus by virtue of the Act creating that fund.
Nor am I able to locate within the Acts creating the office of Judge of the Superior Courts Emeritus (Ga. Code Ann. 242601 a, et seq.) and establishing for the benefit of such emeritus officers the Superior Court Judges Retirement Fund (Ga. Code Ann. 24-2608a, et seq.) any provision which would exclude Judge Hames from eligibility to participate in the latter fund, provided that he complies strictly with the prerequisites to such participation (Ga. Code Ann. 24-2609a) by making the required contributions within 90 days after taking office as Judge of the Superior Court.

OPINION 68-445

October 30, 1968

This is in reply to your request for an official opinion in which the following questions are raised: (1) Must traffic stop for municipal transit system buses, military buses, and privately owned buses, all of which bear the legend "School Bus," when such vehicles are stopped upon a highway? (2) Under what authority may the owner of a privately owned vehicle mark the same as a school bus? (3) What speed limits are applicable to the operation of school buses?

A school bus is "every motor vehicle owned by a public or governmental a~ency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to or from school." Ga. Code Ann. 68-1502 (l)(f). Thus, a school bus may be either a publicly owned or a privately owned vehicle.

The operator of any vehicle .on a highway when approaching, from either direction, a school bus which is stopped on the highway to discharge or receive school children "shall stop the vehicle before reaching such school bus and shall not proceed until such school bus resumes motion, or until signaled by the driver to proceed." Ga. Code Ann. 68-1667(a). The statute is selfexplanatory. Vehicular traffic must stop when any school bus is stopped upon a highway for the purpose of receiving or discharging school children. Every bus used to transport school children must have a clearly visible sign on the front and rear

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thereof which contains the words '"School Bus' in letters not less than eight inches in height." Ga. Code Ann. 68-1667(b). While it might be argued that vehicular traffic must stop when approaching an unmarked school bus which has stopped to discharge or receive passengers, it is my opinion that subsections (a) and (b) of Ga. Code Ann. 68-1667 must be read together, and that the obvious intendment of the legislature is that vehicular traffic approaching a marked school bus which has stopped on a highway to discharge or receive school children must stop before reaching the school bus and shall not proceed until the school bus is in motion or until the school bus driver has signaled the approaching driver to proceed.
Since a school bus is legislatively defined as either a publicly or privately owned vehicle (Ga. Code Ann. 68-1502 (l)(f)), the legislative requirement that such buses bear signs containing the words "School Bus" (Ga. Code Ann. 68-1667(b)) is sufficient authority for the owner of a private vehicle to mark the same as a school bus.
The minimum speed of a school bus operating on any highway which is a part of the National System of Interstate and Defense Highways which have not less than four traffic lanes, or on State Highway No. 316, is forty miles per hour. Ga. Code Ann. 681626(b)3.
The maximum speed on any highway for a school bus other than a bus owned or operated by a company engaged in the operation of an urban transit system is forty miles per hour. Ga. Code Ann. 68-1626 (b)4&5. School buses, operating on any highway, which are "owned or operated by a street railroad or other company engaged in the operation of an urban transit system which are used for the transportation of school children may be operated at speeds in excess of 40 miles per hour provided such speeds are within the maximum speed limits of the municipalities in which such buses are operated." Ga. Code Ann. 68-1626(b)4&5.
You have also requested that I comment upon Departmental policy matters concerning the enforcement of laws relating to the operation of school buses. It is my opinion that the statutes cited thus far in this opinion relating to the operation of school buses are clearly traffic statutes and that a violation of the same would constitute a traffic offense. Therefore, I believe that your

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Department should be guided generally by the proviswns of Ga. Code Ann. 92A-239 which requires that the Uniform Division of the Department of Public Safety patrol rural and public roads and highways throughout the 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."

OPINION 68-446 (Unofficial)

October 31, 1968

You have requested our unofficial opinion on whether a candidate may offer for both County Surveyor and Justice of the Peace. You have also requested our unofficial opinion on whether a candidate may offer for Justice of the Peace and Constable of the same militia district.

In response to your first question, I have been unable to find any law which would prevent a candidate from running for or holding both the office of County Surveyor and Justice of the Peace.

In response to your second question, I have found no law which would prohibit a candidate from running for both the office of Justice of the Peace and Constable of the same militia district. Further, I have found no statutory prohibition against holding both offices. However, although there is no statutory prohibition against holding both of these offices, there may be other considerations affecting this problem. At common law, for example, public officers were consistently prohibited from holding two incompatible positions at the same time because of the conflict of interests presented by being both the master and servant. 67 C.J.S., Officers, 23. Since it may be necessary for a Justice of the Peace to discipline or rule on the conduct of a Constable, (see, e.g., Ga. Code Ann. 24-814, 24-819), there is a strong possibility that a court would decide that the two offices are incompatible and there would be a conflict of interests which would prohibit holding both offices.

OPINION 68-447 (Unofficial)

651 October 31, 1968

In your letter you asked whether the surety on a "Retailer's Liquor License Bond" would be liable for delinquent taxes which might accrue over a period of years.

Retail liquor dealers must each year obtain a license to do business in the State of Georgia. Licenses are issued for a calendar year and cannot be renewed. Before a license is issued the applicant must each year file with the State Revenue Commissioner a bond conditioned to pay "all sums which may be due by said principal as taxes, license fees, rental charges, or otherwise, including penalties and interest, by reason of the operation of said business." Since the sums due are limited to those that result from the operation of the business it is my opinion that the bond in force for each calendar year is subject only to those taxes which become due and payable during the period.

OPINION 68-448 (Unofficial)

October 31, 1968

This is our interpretation of the new Ga. Code Ann. 24-3104, enacted in Ga. Laws 1968, p. 1230, as related to your questions:

1. Would court hours from 9:00 A.M. to 5:00 P.M. (with one-hour lunch period) constitute "a day"?

Yes. The statute provides explicitly that "a day shall be deemed to be a period of eight hours, or any part thereof, in computing the compensation of the court reporter for attending court...." (Emphasis added.) Even if the lunch hour was not considered a part of this eight-hour period of "attending court," the remaining court hours would, according to the statutory definition, constitute a "part thereof" and, therefore, "a day."

2. If the above question is answered in the affirmative, would the court reporter be entitled to another full day's compensation of Thirty ($30) Dollars if he attended court beyond 5:00 P.M., for example, 5:01 P.M., or a greater period of time than eight hours on the same date?

652
The answer here would depend on whether the ['one-hour lunch period" should be included in the nine to five, eight-hour period of "attending court." If it is to be included in the eight-hour period, the reporter's attending court during the regular court hours from nine to five would exhaust the maximum eight-hour limitation. Consequently, any additional time spent attending court for the purpose of recording testimony-strictly, even one minute-would constitute "part" of a new eight-hour period and entitle the court reporter to another day's pay of Thirty ($30) Dollars. The statute is clear on this point and must be taken to mean what it clearly says. See New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337, 12 S.E.2d 355 (1940); Barnes v. Carter, 120 Ga. 895, 898, 48 S.E. 387 (1904). On the other hand, if the lunch hour is not included in the statutory eight-hour period, the court reporter would have to "attend court" until 6:0 I P.M. or more than one additional hour before he earned another day's pay.
I believe that the lunch hour should be excluded from the eighthour period for the following reasons:
(a) The statute itself indicates that only working court hours should be included. The first sentence states that the compensation of the court reporter shall be "for taking down testimony. . . ." This initial phrase would seem to limit the later references to "attending court" to those working hours when the court is actually in session. This view would accord with a basic rule of statutory construction by giving effective and harmonizing meaning to every word and provision of the Act, if possible. Freeman v. Woodman of the World Life Ins. Soc., 200 Ga. I, 4, 36 S.E.2d 81 (1945); Falligant v. Barrow, 133 Ga. 87, 92,65 S.E. 149 (1909).
(b) The Workmen's Compensation tests to determine whether an employee's lunch hour is within the "course of employment," offer a helpful analogy. Generally, an employee is not acting within the "course of employment" if he leaves the premises and is free to go where he wishes during his lunch hour, particularly if he is not subject to the immediate control of the employer. See, Larson, Workmen's Compensation Law, 21.21(2), 21.23. A similar test was applied to jurors in Mason v. Culbert, 108 Cal. 247, 41 Pac. 464, when the court defined "attendance in court" to mean being at the place where court is held and subject to call

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by the court, not free to engage in ordinary activities. The customs and practices of each court would, of course, determine how its own reporter would fit within these guide lines, and whether he would be "attending court" for the purpose of "taking down testimony" while on lunch break.
(c) Georgia courts follow the general rule that compensation statutes should be strictly construed in favor of the government and have consistently held that the measure of compensation to a public official "cannot be increased by construction, or in any indirect manner, beyond the amount specified by law." Walker v. Shejia/1, 73 Ga. 806, 807 (1884); McAlpin v. Chatham Co., 26 Ga. App. 695, 107 S. E. 74 (1921 ). Also, double per diems are not generally favored. See Annotation, 1 A.L.R. 274 and 67 C.J.S., Officers, 90, fn. 47.
3. If question 2 above is answered in the affirmative and the court reporter has earned overtime compensation owing to him which a predecessor judge refused to order paid by the county authorities, would a successor judge be legally authorized to order payment thereof? (This covers period from 1963 through 1965.)
Yes. If the court reporter had qualified under the pre-1968, 24-3104, for another day's pay which fixes the rate of compensation at Twenty-Five ($25) Dollars per day, there would arise an implied contract to pay for these services at that rate. This implied contract remains in effect even after the statute which gave rise to the right is repealed. See 43 Am. Jur. Public Officers 348; and 67 C.J.S. Officers 93, pp. 338-339. To refuse to honor this obligation would violate both the United States and Georgia constitutional prohibitions against impairment of contract rights. It was held in Mississippi v. Robertson, 276 U.S. 174,72 L. Ed. 517 (1928), that:
" ...after services had been rendered by a public officer under a law specifying his compensation, there arises an implied contract under which he is entitled to have the amount so fixed. And the court protection extends to such contracts just as it does to those specifically expressed." 276 r U.S. at 179, 72 L. Ed. at 520. The subsequent repeal of the law giving this right "would impair the obligation of the implied contract" and "would therefore violate the contract clause of the Federal Constitution." 276 U.S. at 177, 72 L.

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Ed. at 519. (Accord Louisiana. ex rei. Fisk v. Police Jury of Jefferson, 116 U.S. 131, 134, 29 L. Ed. 587, 588 (1885). There would be a similar violation of Ga. Const., Art. I, Sec. III, Par. II (Ga. Code Ann. 2-302). See Waters v. Dixie Lumber & Mfg. Co .. 106 Ga. 592, 32 S. E. 636 (1899)).
The 1968 amendment to Ga. Code Ann. 24-3104, increasing the rate of compensation to Thirty ($30) Dollars per day could not be applied retroactively since Art. VI, Sec. I, Par. I I Sub par. (2) of the Georgia Constitution provides:
"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." (See also Ga. Code Ann. 102-104).
4. Does the clause "and a full eight hours for writing out" mean that the court reporter is compensated on a "timespent" basis for transcribing his notes, if directed by the judge to do so?
Yes. To construe this provision otherwise would mean that unless the court reporter spends at least eight hours "writing out" he could not be compensated for any of his work requring less than eight hours. Such a construction would also thwart the main purpose of the statute which is to provide for compensation. Although compensation statutes should be strictly construed, it has been held that such construction should be equally removed from that extreme strictness which would make the statute
;/
"unpopular, ridiculous or difficult to enforce," as well as that construction which would render it ineffective. Roberts v. State, 4 Ga. App. 207(2), 60 S.E. 1082 (1908); Board of Tax Assessors of Decatur v. Catledge, 173 Ga. 656(2), 160 S.E. 909 (1931). A reasonable intrepretation of this provision would allow compensation on a time-spent basis and not be out of line with general rules of statutory construction rejecting a too-literal reading when that would lead to unreasonable results. See, e.g. Moore v. Robinson, 206 Ga. 27, 28(6), 55 S.E.2d 711 (1949); and Blalock v. State, 166 Ga. 465, 470, 143 S. E. 426 (1928), holding that statutory construction should square with common sense and, sound reasoning.

OPINION 68-449 (Unofficial)

655 November 1, 1968

Georgia law does not require owners of unimproved real property for sale to the general public to register with the State for purposes of disclosure.
To my knowledge, there has been no recent legislation either proposed or introduced to the Legislature on this subject.

OPINION 68-450 (Unofficial)

November 5, 1968

You wish to know whether Ga. Code Ann. 34-1405(b) allows an elector to copy the list of absentee names for his personal reference while the elector is in the proper official's office.

The Georgia Election Code provides as follows:

"Each board of registrars shall maintaiu for public inspection a master list, arranged by election districts, setting forth the name and residence of every elector to whom an official absentee ballot has been sent." Ga. Code Ann. 341405(b).

It is my unofficial opinion that the right given to the public by the Election Code would include the right to copy the list of absentee names while in the proper official's office. The law provides for certain ground rules in copying records which are made available to the public and I am attaching to this letter a copy of the applicable law for your information (Ga. Laws 1959, pp. 88, 89, codified as Ga. Code Ann. Ch. 40-27).

OPINION 68-451

November 5, 1968

You advise me that two former employees of your department, during your predecessor's administration, desire to obtain credit in the Employees Retirement System for several years of service rendered after the date your department came under the System. Due to some unexplained reason, these employees were not brought under the System at the time the department came under the System, and you are advised that according to the records of

656
the System no Election of Non-Membership forms were filed. You request my opinion as to whether you may legally include, as a line item in the proposed 1969-71 biennium budget for your department, an amount sufficient to pay the employer's contribution necessary to allow these employees to obtain credit under the Employees Retirement System for their prior service.
As you know, the Comptroller General as such officer and exofficio Insurance Commissioner and Safety Fire Commissioner is authorized:
" ... to perform all the duties and obligations of an employer, as the term is defined in the Acts creating the said Merit System and the Employees Retirement System of Georgia, including the payment of all contributions required by said laws from such funds that are available from appropriations made for the operation of the said offices, to the end that the employees thereof shall be members and entitled to receive the benefits of said Employees Retirement System. Such payment shall be part of and in addition to the regular compensation allowed to the employees of the said offices." (Emphasis added) Ga. Laws 1951, pp. 668, 669, codified as Ga. Code Ann. 40-2241,40-2529.
From the above, it is clear that if the contribution is required by the Employees Retirement System, you are authorized to pay it.
Since no Election of Non-Membership forms were filed on behalf of these two employees, I must assume they became members of the Employees Retirement System when your department was brought under the System. Ga. Code Ann. 402503 (1 )(2). If these individuals were members of the System, then the law imposed a duty upon their employer to pay the employer's contribution. Ga. Code Ann. 40-25 II (3 )(a )(d )(7).
As pointed out above, the employer's contribution is a part of the regular compensation allowed to your employees. If, for some unexplained reason, the employer's contribution was not paid to the account of these two employees, it is my opinion that this employer's contribution would be an expense of your department and as such would be an appropriate item for the proposed 196971 biennium budget: Georgia Constitution, Art. III, Sec. VII,

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Par. IX; Art. VII, Sec. IX, Par. I, Subpar. (a) and (b), codified as Ga. Code Ann. 2-1909, 2-620l(a) and 2-620l(b).
Relying on the facts contained in your request as set out in this opinion, I have concluded that the employer's contribution is an expense of your office which by law you are authorized to pay, and it is my opinion that you may include the employer's contribution as a line item in the proposed 1969-71 biennium budget for your department.

OPINION 68-452

November 6, 1968

You requested an official opinion as to whether you could issue a name certificate to be used in the incorporation of a non-profit corporation by the name of "American Savings and Loan League, Inc."

According to the information in your letter, the above-described corporation will have as members savings and loan and building and loan associations which have been established pursuant to applicable statutes. Also, you state that the purpose of the formation of said corporation will be to promote safe, sound, and equitable methods for the operation of savings and loan and building and loan associations, as well as to improve the management capacities of the associations which form the membership of the corporation.

First your attention is called to Ga. Laws 1937-38, Ex. Sess., pp. 307, 311 (Ga. Code Ann. 16-412) which provides:

No court in this State shall hereafter grant any new charters to any State chartered association nor any renewals or amendments to any existing charters of any State chartered association without the prior written appro val of the Secretary of State. Any new charter or any renewals of, or amendments to, any existing charters, granted in the future without such prior written approval shall be null and void.

Finally, you attention is called to Ga. Laws 1937-38, Ex. Sess., pp. 307, 314-15 (Ga. Code Ann. 16-420) which, in part, provides:

No person, firm, company, assoc1atwn, co-partnership, or corporation, either domestic or foreign, unless it is operating

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pursuant to the provisions of this Chapter, or under the provisions of Home Owners' Loan Act of 1933, of the Congress of the United States, and is actually engaged in carrying on a building and loan, or savings and loan business in this State under the provisions of this Chapter, or under the provisions of the Home Owners' Loan Act of 1933 of the Congress of the United States, shall hereafter transact business under any name or title which contains the terms "Savings and loan," and/or "building and loan," or combination of the words used in said phrases, nor use any sign, or use any letterhead, or billhead, circular, or paper of any kind, or advertise in any manner which indicates that his or its business is the character or kind of business carried on or transacted by a building and loan, or savings and loan association, as contemplated in this Chapter, or which is likely to lead the public to believe that his or its business is that of a building and loan, or savings and loan association: . . . .
In construing a statute, the cardinal rule is to look diligently for the intention of the General Assembly in passing the legislation. Lewis v. City of Smyrna, 214 Ga. 323 (1958) and Ga. Code Ann. 102-102 (9). Additionally, statutory construction is not permissible when a statute is clear and unambiguous in its terms. New Amsterdam v. McFarfey, 191 Ga. 334,337 (1940).
In view of the above statutes, i.e., Ga. Code Ann. 16-412 and 16-420, it is my official opinion that the General Assembly of Georgia intended for you, as the Secretary of State, not to issue name certificates to corporations, either profit or non-profit, the name of which was such as to be prohibited by Ga. Code Ann. 16-420. As you will note, Ga. Code Ann. 16-420 provides that no person, firm, company, association, co-partnership, or corporation "... shall ... transact business under any name or title which contains the terms 'savings and loan,' and/or 'building and loan' . . . . " It is my official opinion that the corporation under question would be ". . . transact (ing) business. . ." which is prohibited by Ga. Code Ann. 16-420 and that the language of the statute is clear and unambiguous in its prohibition of the use by a corporation of the term "savings and loan," unless authorized to do so pursuant to Ga. Code Ann. Ch. 16-4.
Therefore, it is my official opinion that you are not authorized

659
to issue a name certificate to be used in the incorporation of "American Savings and Loan League, Inc."

OPINION 68-453

November 8, 1968

This is in response to your request for an opinion on the following question:
"Under present constitutional and legislative authority, can the capital improvement of a metropolitan regional park, designed to serve the residents of more than one local governmental unit, be legally prorated and funded through the agreement and collective financial efforts of the coterminous local governments?"
Ga. Code Ann. 69-605 (Ga. Laws 1964, pp. 319, 320) provides in pertinent part:
"... any county or municipality, or combination thereof, may jointly .. acquire property for and establish and maintain ... parks and other recreational facilities and activities."
Based upon the above-quoted section, it is my official opinion that your inquiry must be answered in the affirmative.

OPINION 68-454 (Unofficial)

November 12, 1968

Bond No. QLl-151-927802-28 is a statutory bond issued pursuant to Ga. Laws 1967, p. 450. It was conditioned to pay any prior owner or subsequent owner any expense, loss or damage by reason of issuance of a certificate of title on a 1965 Oldsmobile 98 bearing Manufacturer's I.D. No. 386695M343968. By statute the bond is issued for a period of four years or until the vehicle is no longer registered in the State of Georgia and the currently valid certificate of title is surrendered to the Commissioner. It is, therefore, my opinion that this bond is not subject to cancellation and must remain in force to protect prior and subsequent owners of the above automobile for the required statutory period.

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OPINION 68-455 (Unofficial)

November 12, 1968

In your letter you state that you purchased a 1967 Ford Mustang from State Farm Mutual Insurance Company, Serial Number 7TOISI28306. You also state that this automobile was in a wrecked condition when purchased by you. Records of the Motor Vehicle Unit of the Department of Revenue show that the outstanding certificate of title on this automobile was turned over to the Department of Revenue by State Farm Mutual Auto Insurance Company in accordance with Ga. Code Ann. 68420A and Regulation of the Department of Revenue 560-l0-13.09. Accompanying this title was a letter from the Insurance Company explaining that the automobile was so badly wrecked that they were unable to find the manufacturer's serial plate. According to our records State Farm Mutual has complied with the law and Department of Revenue Regulation.

Until this automobile is repaired it cannot under the Ia w bear a serial plate or be titled. When the automobile is repaired the automobile can be retitled and a new serial plate issued for it upon the submission of an application for title, proof of repairs of the automobile and a chain of title evidenced by bills of sale. (The Department of Revenue Regulation No. 560-l0-13-.07).

OPINION 68-456 November 13, 1968
You requested an opinion as to whether the construction contract with A.J. Kellos Construction Co., Inc. should be increased in the amount of $4,222.55 due to the increase in the minimum wage rates as established by the United States Department of Labor for specified journeyman crafts.
According to the information in your letter, as well as a supplemental letter dated October 14, 1968, to this office, the Veterans Service Board and A.J. Kellos Construction Co., Inc., General Contractors, of Augusta, Georgia, entered into a stipulated sum Owner-Contractor Agreement dated December 15, 1966, for the construction of a 192-bed Georgia Veterans Nursing Home in Augusta, Georgia, for a total contract sum of $1,588,821.

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On page 2 of the above-mentioned Owner-Contractor Agreement the following provision (hereinafter sometimes referred to as the "hardship provision") is made:
Where the quantities originally contemplated are so changed that application of the agreed unit price to the quantity of work performed is shown to create a hardship to the owner or the contractor, there shall be an equitable adjustment of the contract to prevent such hardship.
Additionally, by Number 13 of the application by the Veterans Service Board to the United States Veterans Administration for a Federal grant of a portion of the contract price for the construction of said Georgia War Veterans Nursing Home dated November 1, 1965, as revised on August 31, 1966, the State agency (the Georgia Veterans Service Board) gave assurance to the United States Veterans Administration that:
. . . construction contracts in excess of $2,000 will prescribe that the rates of pay for laborers and mechanics engaged in the construction of the project will not be less than the prevailing local wage rates for similar work as determined in accordance with Sections 276a through 276a-5 of Title 40 (known as the Davis-Bacon Act).
Finally, according to the information furnished to this office a decision of the United States Department of Labor, Number AG234, which expired on December 1, 1966, was included as a part of the job specification when the above-mentioned contract was put out for bid. The construction contract, as above indicated, was not executed until December 15, 1968, fifteen days after the above-mentioned minimum wage rate decision had expired. Thus, a new United States Department of Labor decision was obtained in regard to the minimum wage rates. The new minimum wage rate decision, Number AG-4403, increased the basic hour rates for certain crafts, e.g., brick layers, carpenters, and plumbers. According to information furnished with your request, that new minimum wage rate decision resulted in an increased labor cost of $4,222.55, which is the amount at issue in your request for an opinion.
Due to the a hove-explained increase in wage rates, Gregson & Associates, the architects for the Georgia War Veterans Nursing Home, have, by instrument dated September 3, 1968, presented

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Change Orde1 Number 15 to your department to add the ~urn of $4,222.55 to the contract price, as previously adjusted. The Change Order of the architects stated that:
the additional costs are accurate, not exceeding actual requirements and that the costs are fair and equitable, not exceeding costs for the like services or materials.
Also, in the "Specifications for Construction of 192-bed Georgia Veterans Nursing Home, Augusta, Georgia, Project No. 10-NOOl" dated September 2, 1966, Section D, containing the General Conditions (VA Pamphlet 10-84), p. 5 thereof, which was incorporated in the specifications, the contractor of the nursing home is required to execute a "weekly statement of compliance" with the Copeland Regulation which must contain the following statement:
(2) That the payrolls submitted for the above period are correct and complete, that the wage rates for laborers or mechanics contained therein are not less than the applicable wage rates contained in the wage determination decision of the Secretary of Labor incorporated into the contract; ....
The State Department of Veterans Services by letter dated December 6, 1966, requested a substitution in the specifications of the new minimum wage rates and the architect, Gregson & Associates, by letter dated December 13, 1966, advised A.J. Kellos Construction Co., Inc. of the new minimum wage rates and requested that Kellos advise the architects " . . . if these new rates affect this project." According to the information in the abovementioned supplemental information letter dated October 14, 1968, the contractor, A.J. Kellos Construction Co., Inc., advised the architect by letter dated April 17, 1967, that his cost would be increased by the new minimum wage rates, but no formal change order request was made prior to Change Order Number 15, dated September 3, 1968.
Therefore, although the specifications refer to the minimum wage rate decision as incorporated therein, which in this instance was the decision which expired on December 1, 1966, prior to the execution of the contract, and although the contractor was given an opportunity previously to make a request due to the possible increase in the cost due to the increase in the wage rates, it is my

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ofhdal opinion that you should honor and approve the request that the $4,222.55 be added to the contract price, as previously adjusted.
This opinion is based primarily upon the fact that the agreement between the Veterans Service Board and the United Stats:s Veterans Administration provided that minimum wage rates would be paid as determined by the United States Department of Labor and that substantial compliance with that agreement is necessary for the proper administration of the Georgia War Veterans Nursing Home in cooperation with the United States Veterans Administration.
Additionally, certainly under the spirit of the heretofore mentioned "hardship provision" of the Owner-Contractor Agreement, it is my opinion that equity requires that the Veterans Service Board increase the contract price by the amount claimed due to the wage rate increases, which according to the information from the architects, is " ... accurate, not exceeding actual requirements and ... are fair and equitable, not exceeding costs for the like services or materials."

OPINION 68-457 (Unofficial)

November 13, 1968

You have requested an unofficial opinion respecting certain questions which have arisen in the interpretation of an amendment to the Act establishing the Board of Public Education and Orphanage for Bibb County. Ga. Laws 1968, p. 2835.

You first wish to know on what date the Ordinary and Judges of the Superior Court cease to be members of the Board. The 1968 amendment provided in Section 2C as follows:

"After the effective date of this section, the ordinary and

judges of the Superior Court of Bibb County shall cease to

be members of the Board

." Ga. Laws 1968, pp. 2835,

2836.

The amendment provides for a referendum to be held at the general election and if more than one-half of the votes cast on such question are for approval of this Act, it shall become of full force and effect, otherwise it shall be void and of no force and

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effect. It IS the duty of the Ordinary to canvass the returns and declare and certify the result of the election and it is the Ordinary's further duty to certify the result thereof to the Secretary of State. Ga. Laws 1968, pp. 2835, 2839-40.
Since the Act provides that it shall be of full force and effect in the event more than one-half of the votes cast on such question are for approval of such Act and since the Act provides, in this instance, that the Ordinary is the authority who canvasses the returns and declares and certifies the result of the referendum, it is my unofficial opinion that the Act becomes effective upon the date of the Ordinary's proper certification of the result of the referendum. I might add that this is in accord with Ga. Code Ann. 34-1509 which provides that the results of all referendum elections shall immediately be certified by the authority holding the election to the Secretary of State.
The amendment further provides that in the year 1969, the members of the Board shall elect successors to the incumbents occupying positions 1 and 2. Ga. Laws 1968, pp. 2835-36, section 2C. You wish to know whether it is optional with the Board as to when in 1969 they shall elect the successors to the incumbents. Since section 2C of the Act provides that subsequent elections shall be held in June of the particular year, it would appear that if the General Assembly wished to require the Board to elect the 1969 successors at some particular time in 1969 they would have so provided in the Act. Since this was not done, it is my unofficial opinion that the Board may exercise its discretion in electing the two successors at any time during 1969.

0 PINI0 N 68-458 (Unofficial)

November 13, 1968

You ask for an opinion concerning the Georgia statutes dealing with obscenity. You have also asked whether or not a city is authorized to adopt an obscenity ordinance.

Since your inquiry alludes to the showing of motion pictures in an apparent commercial setting, I direct your attention to Ga. Code Ann. 26-6301 and 26-6301.1, both of which are statutes of general application dealing with obscenity. While the cited statutes express the general statutory law in this State on the

665
subject of obscene matter, I cannot express an opinion dealing with the application of these statutes to a motion picture which has been described to me in the most broad and general terms. Any opinion concerning the obscene nature of any specific book, photograph, or other presentation would have to be based upon an examination of the matter in question. Therefore, no opinion can be expressed concerning the motion picture to which you refer in your inquiry.
Turning now to your question concerning the adoption of a city ordinance dealing with obscenity, I wish to advi~e you that Art. I, Sec. IV, Par. I of the Constitution (Ga. Code Ann. 2-401) 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 general law." Ga. Code Ann. 26-6301 and 26-6301.1 are general laws within the meaning of the quoted constitutional provision. While municipal ordinances are not State statutes, such ordinances are considered to be special laws within the meaning of Art. I, Sec. IV, Par. I of the Constitution when it is necessary to determine whether or not the conduct sought to be proscribed by the ordinance is governed by a State statute of general applicability. A municipality cannot adopt an ordinance which deals with matters which are covered by a general State law. Art. I, Sec. IV, Par. I of the Constitution (Ga. Code Ann. 2-401 ). Giles v. Gibson, 208 Ga. 850 (1952); Jenkins v. Jones, 209 Ga. 758 (1953). In view of the existence of statutes of general applicability dealing with obscenity, it is my opinion that a Georgia municipal corporation may not constitutionally adopt a municipal ordinance dealing with that same subject matter.

OPINION 68-459 (Unofficial)

November 14, 1968

In your letter you asked the proper procedure for the owner of a motor vehicle to effect a transfer of his certificate of title when the title is held by a lien or security interest holder.

A provision to effect the transfer of an equity in a motor vehicle was included in the Uniform Vehicle Code Section 3-112(c)(l962). This provision, however, has not been adopted .in the State of Georgia.

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Under Georgia's Motor Vehicle Certificate of Title Act the State Revenue Commissioner can issue a new title only after the existing title has been delivered to him along with the owner's assignment and warranty of title. Ga. Code Ann. 68-415a. Therefore, unless the lien or security interest holder will release for the purpose of transfer the existing title which he holds, a new title in the transferee's name cannot be issued.

OPINION 68-460 (Unofficial)

November 15, 1968

You requested clarification as to just what timber transactions, if any, are subject to the Real Estate Transfer Tax (Ga. Laws 1967, p. 778, as amended by Ga. Laws 1968, p. 1102).

The above amendment reads in part:

"Provided further than the tax imposed by Section 1 shall not apply to any instrument or writing which conveys no more than a leasehold interest in standing timber."

Timber conveyances in Georgia are commonly and indiscriminately referred to as timber leases or timber deeds. The conveyances can have either of two purposes. The first is in effect a sale of standing timber with a license for a given period of time to enter upon the land involved and cut and remove the timber therefrom. The other is in effect a long-term lease of certain land for the purpose of tree farming thereon.

From the use of the words "a leasehold interest in standing timber" (Emphasis added.) it would seem that the General Assembly intended to exempt from the Real Estate Transfer Tax the sale of standing timber but not the long-term lease of land for tree farming.

From the above it can be seen that the effect and not the title of the conveyance is controlling.

OPINION 68---:-460.1 (Unofficial)

November 15, 1968

In reference to unclaimed bank deposits and insurance funds due beneficiaries who cannot be located, you have asked several questions as follows:

667
~I) With reference to unused bank deposits, how long is the bank required to maintain such deposits and what happens to money not claimed in a certain length of time? Is the same true of checking and savings accounts?
The only specific law dealing with dormant bank accounts is as follows:
"Any bank may, in accordance with such regulations as the Superintendent of Banks shall prescribe, from time to time, take, levy, receive, reserve, or charge any dormant account a reasonable service charge not in excess of a rate or charge as prescribed by regulations promulgated by Superintendent of Banks." Ga. Code Ann. 13-2067.
I am attaching to this letter a copy of Chapter 80-1-8 of the Rules and Regulations of the Department of Banking which have been promulgated under the authority of the above Code section.
(2) What does an insurance company do with money due a beneficiary that cannot be located? Are they required to advertise to locate a beneficiary in any manner?
I am also attaching to this letter a copy of Ga. Code Ann. Ch. 85-11, which deals with escheat and forfeiture. It is the only applicable law in Georgia which I have been able to find that would deal with your second question.
(3) Is a bank or insurance company required to reveal upon inquiry of an individual the names and amounts due depositors or beneficiaries that cannot be located?
I am not a ware of a law which would require a bank or insurance company to reveal the information you request.
OPINION 68-461 November 18, 1968
It is my understanding that a circuit probation officer duly appointed by your Board was suspended from his duties in June of 1968 following his indictment for a felony. On October 16, 1968, the suspended officer was acquitted of the charges. He was reinstated on October 21, 1968. You request my opinion as to the legality of paying the officer his regular salary for the period of his suspension. While your request does not so specify, it is my

668
understanding that circuit probation officers are not employees under the State Merit System.
Art. VII, Sec. I, Par. II, Subpar. 1 precludes the General Assembly from granting any donation of gratuity in favor of any person unless specifically authorized by constitutional provision. Ga. Code Ann. 2-5402. This prohibition on gratuities necessarily precludes payments for services unless by contract or statute the State is subject to an enforceable, legal obligation. After reviewing Ga. Code Ann. 27-2706 to 27-2708 I am of the opinion that circuit probatioR officers are public officers within the definition of Wright v. Gamble, 136 Ga. 376 (1911), and as a consequence hold office at the pleasure of the appointing power. In view of the constitutional prohibition against the granting of gratuities and the statutory definition of such probation officers' official duties, a suspension of an officer's authority to discharge his duties is substantively equivalent to a removal from office terminating the power of the State to render compensation. In fact, the statutory scheme under which the Board operates does not contemplate a suspension of an officer short of removal and discharge. The employee may not constitutionally be paid his regular salary or any other compensation from the State treasury to which he would have been entitled absent the suspension because he presumably performed no services for the State during the period of suspension.
Opinions 68-76 and 68-187 have reference to the State Merit System and are inapplicable to public officers.

OPINION 68-462 (Unofficial)

November 18, 1968

You ask whether counties in Georgia having a population of 10,000 or less are limited to a single governing authority respecting their school systems.

Art. VIII, Sec. .V, Par. I of the Constitution of the State of Georgia of 1945 (Ga. Code Ann. 2-6801) provides that each county, exclusive of any independent (i.e. city) school system existing when the Constitution was adopted, shall constitute a single school district and shall be confined to the control and management of "a County Board of Education." Thus it may

669
generally be stated that disregarding municipal school systems which existed prior to adoption of the 1945 Constitution and are permitted to continue to exist under said Constitution, a county is limited to a single county-wide board of education. Under this general constitutional provision the restriction to a single school board applies to all counties, regardless of size.
It is possible, although I think unlikely, that this general rule may have been modified as to a particular county or counties, or to particular classes or sizes of counties, by means of a constitutional amendment of local or specialized application. While I have never had occasion to research the law on this point and hence am not in a position to give you an unqualified answer, I can say that I am at least not aware of any such local or special amendment in derogation of the above-mentioned general rule.

OPINION 68-463 (Unofficial)

November 19, 1968

This is in response to your letter requesting an opinion as to whether or not the Polk County Water Atuhority (created pursuant to Ga. Laws 1967, p. 3108) legally may construct sewage facilities and lease same to the Polk County Water Association, Inc., a private, non-profit corporation, for a period in excess of 60 years under an agreement which would obligate the said Association to operate and maintain such facilities for the benefit of the public. According to the information you have furnished, the purpose of this arrangement is to secure better financing for the project, thereby enabling the Authority to provide better sewage facilities.
I believe the question posed must be answered in the affirmative based upon the express provisions of the Act creating the Authority. The General Assembly has given the Authority power to construct "projects," Ga. Laws 1967, pp. 3108, 3114, 4(f), which includes waste water or sewage treatment facilities, Ga. Laws 1967, pp. 3108,3111, 3(b), and to lease same to "any and all persons, firms and corporations." Ga. Laws 1967, pp. 3108, 3114, 4(3).

The answer furnished herein assumes that any such construction and leasing is strictly in accordance with all applicable Federal

670
and State laws and regulations, and we must caution you that this opinion should not be construed as an approval of any particular lease agreement or the terms and conditions of any particular leasing arrangement.
OPINION 68-464 November 19, 1968
This is in reply to your request for an opinion from this Department in which you ask the following questions:
1. Are State prisoners, confined in State prison facilities, and who are engaged in farming operations, food preparation, laundry work, maintenance and repair of prison buildings and facilities, or maintenance and repair of highways eligible to receive incentive payments pursuant to Ga. Laws 1968, p. 1399?
2. (a) Are State prisoners, confined in county public works camps, and who are engaged in the construction and maintenance of highways, or other county projects, eligible to receive incentive payments pursuant to Ga. Laws 1968, p. 1399?
(b) Are State prisoners confined in county camps, if eligible for incentive pay, to be paid from State funds?
3. What effect, if any, does Ga. Laws 1968, p. 1399 have upon the Prison Industries Administration Act (Ga. Laws 1960, p. 880 [Ga. Code Ann. Ch. 77 -9])?
Ga. Laws 1968, p. 1399, insofar as it relates to your present inquiry, amended Section 22(c) of the existing Act by adding to the end thereof the following language: "The State Board of Corrections is authorized, pursuant to rules and regulations adopted by said Board, to pay compensation of not more than twenty-five dollars ($25.00) per month from funds available to said Board to each prisoner employed in any industry." While the 1968 amendment added language to a paragraph which had previously dealt exclusively with the dis position of funds arising from the sale of goods manufactured or produced by any prison, you will notice that the language of the amendment is directed toward payment "from funds available to the Board to each prisoner employed in any industry."

671
Your first question asks whether or not prisoners engaged in the specified works, under the circumstances outlined in the question, may be paid incentive pay. The question must be resolved by defining the word "industry." That term has apparently never been judicially defined in Georgia. However, as stated in my opinion dated March 27, 1968, to the former Director of Corrections, the word "industry" is "any department or branch
1
of art, occupation, or business; esp., one which employs mucb labor and capital and is a distinct branch of trade." Webster's New International Dictionary, Second Edition; Chicago RI& P Railway Company v. State, 201 Pac. 260,264 (Okla. 1921); Dessen v. Department of Labor and Industries of Washington, 66 P.2d 867,869 (Wash. 1937); Briggs v. Zia Company, 315 P.2d 217,220 (N.M. 1957); J.R. Brandeis and Sons v. NLRB, 142 F.2d 977,997 (8th Cir. 1944); Weatherford v. Arlee, 63 S. E.2d 572,574 (W. Va. 1951); Southern Pacific Company v. State Corporation Commission, 3 P.2d 518,521 (Ariz. 1931). That the word "industry" includes, but is not confined to the term "manufacturing" is supported by J.R. Brandeis and Sons v. N LR B, supra. The Brandeis case dealt with the operations of a department store which did not engage in manufacturing processes. The 1968 amendment specifically directed the State Board of Corrections to formulate rules pertaining to incentive pay, and it is my opinion that the word "industry," as used in the legislation, should be defined by the Board in its rules implementing this new legislation. While I consider it to be a proper administrative function of the Board of Corrections to define the word "industry," it is my opinion that the occupations enumerated in your first question are embraced within the term "industry." I do not suggest, however, that only the occupations enumerated in your first question may properly be classified as industrial endeavors.
The 1968 amendment makes no distinction between prisoners engaged in "industry" who are confined in State prison facilities as opposed to prisoners confined to county public works camps. It is my opinion that the place of confinement is irrelevant, and that if a State prisoner is engaged in an endeavor which your Board classifies as "industry", he would be eligible for incentive pay upon the adoption of an appropriate administrative rule. State prisoners confined in county public works camps, would be

672
paid from funds available to the State Board of Corrections, as no provision was made for payments from county funds.
Turning now to your third question I wish to direct your attention to Opinion 68-126 in which I stated that manufacturing operations have been "contemplated both by prisons as such pursuant to Ga. Code Ann. 77-318 and by the Georgia Prison Industries Ad ministration pursuant to Ga. Code Ann. Ch. 779. . . ." It is my opinion that Ga. Laws 1968, p. 1399, insofar as the same relates to incentive pay, does not repeal any of the provisions of the Georgia Prison Industries Administration Act.

OPINION 68-464.1 (Unofficial)

November 20, 1968

You requested information concerning the representative form of government as evidenced in local governmental units. This letter was referred to me for answering since I have been involved in the reapportionment matters concerning the State of Georgia, as well as some local govern mental units.

Rather than answer, individually, your numerous specific inquiries, I am going to set forth my understanding of the various forms of government as used in our representative system in hopes of fully answering your questions concerning these matters.

First, let me state that in Baker v. Carr, 369 U.S. 186 (1962), the United States Supreme Court held that legislative reapportionment was a proper subject for judicial considerations. Then, by Reynolds v. Sims, 377 U.S. 533 (1964), the United States Supreme Court held that the "one man, one vote" principle, as previously established for the election process in Gray v. Sanders, 372 U.S. 368 (1963), required the reapportionment of both houses of a state legislature primarily on the basis of population.

Prior to 1968, the "one man, one vote" principle had not been applied to local governmental units, but had only been applied to state legislative bodies and the United States House of Representatives.
However, on April 1, 1968, the United States ~Supreme Court issued an opinion in the case of A very v. Midland County, Texas,

673
390 U.S. 474 (1968), wherein the Supreme Court considered the apportionment of the Commissioner's Court for Midland County, Texas. After considering the Texas Constitution and statutes, the Supreme Court impliedly found that the Texas Commissioner's Court was a unit of local government having general governmental powers over a specific geographic area.
In reaching this conclusion the Supreme Court quoted from the interpretative commentary in Vernon's Annotated Texas Constitution, Art. V, Sec. 18, of the Texas Constitution which states that the Texas Commissioner's Court:
. . . is the general governi!\g body of the county. It establishes a courthouse, a jail, appoints numerous minor officials such as the county health officer, fills vacancies in the county health offices, lets contracts in the name of the county, builds roads and bridges, administers the counties public welfare services, performs numerous duties in regard to elections, sets the county tax rate, issues bonds, adopts the county budget, and serves as a board of equalization for tax assessments.
The Court also cited Texas statutes which provide that the Commissioner's Court is authorized to build and run hospitals, airports, and libraries, as well as to fix the boundaries of school districts within the county, to establish a regional public health authority, and to establish the district for election of its members. Finally the Supreme Court summarized its opinion as follows:
Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: A requirement that units with general govern mental powers over an entire geographic area not be apportioned among single-membered districts of substantially unequal population.
Therefore, the United States Supreme Court has established the firm rule that a local governmental unit having general governmental powers over a specific area must, if the representatives from such units are elected by districts, not be composed of districts having "... substantially unequal population."
Thus, the above principle forms one type of representative government, i.e., governmental representation by representatives

674
which are elected by the voters of a specific geographic area or district.
In our representative form of government there is still another form of representation. This form is best exemplified by the Senate of the United States in that each state has two Senators who are elected by all of the voters of each state, rather than onehalf of the state electing one Senator and the other half electing the other Senator. Of course, the Senators do not represent just half of the state, or half of the citizens of the state, but rather both Senators of any state represent all of that state and all of the citizens of that state.
This type of representative government is also exemplified by your neighboring District No. 58 in the Georgia House of Representatives. There two State Representatives are elected from the counties of Jeff Davis, Appling, Bacon, and Pierce and all of the voters of each of these counties may vote on candidates for each of these two representative positions. The successful candidates do not represent just one or two of these counties, but represent all of the citizens of each of the counties in the representative district.
The question thus now arises as to whether this type of representative government violates the "one man, one vote" principle, if each county or district does not contain substantially the same population and especially if a residency requirement is utilized.
In Dusch v. Davis, 387 U.S. 12 (1967), the United States Supreme Court considered the apportionment of a borough form of government which had been established by the consolidation of the City of Virginia Beach and Anne County, Virginia. The governmental form established provided for seven boroughs and a council composed of eleven (II) members, four (4) of which were elected at-large without regard to residency, while each of the other seven (7) were required to be a resident of one of the seven (7) boroughs, although elected by the voters of the entire city. The seven (7) boroughs had unequal populations ranging from 733 to 29,048. In the above-referred to decision, the United States Supreme Court reversed the judgment of the Court of Appeals which had held that the plan was violative of the "one man, one vote" rule. In its opinion, the Supreme Court stated that:

675
The seven-four plan makes no distinction on the basis of race, creed, or economic status, or location. Each of the eleven councilmen are elected by vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of a borough from which he is elected, is not fatal . . . by analogy the present consolidation plan uses boroughs in the city "merely as a basis of residency for candidates not for voting or representation." He is nevertheless the city's, not the borough's councilman . . . .
Thus, the United States Supreme Court has also established the principle that this second type of representative government is not violative of the "one man, one vote" principle when there is a residency requirement by election districts so long as the voting in the governmental unit is at-large, or by the voters of the entire area making up the governmental unit.
In Greer v. C. 0. Polk, Ordinary of Henry County, Georgia, Civil Action No. 11970, United States District Court, Northern District of Georgia, Atlanta Division, residents of Henry County, Georgia, attacked the apportionment of the County Commissioners for Henry County whereby each Commissioner was elected from a separate Commissioner district, which varied widely in the number of registered voters. The District Court held on July 25, 1968, that the apportionment was invalid and required the election to be held county wide, i.e., each Commissioner was voted upon by the voters of the entire county.
Thus, it would appear from the above Greer decision that the principle established by the Supreme Court in Avery, supra, applies to the county commissioner form of government in Georgia. Therefore, in answer to your questions in regard to the commissioner form of government in Camden County, the county commissioners which, I assume from the information in your letter, are elected by all of the voters of Camden County, although required to reside in a specific district, represent all the citizens of Camden County and not just the districts of St. Mary's, Kingdom, Woodbine, or White Oak. Rather than have just one person from your district to represent you, you have a voice in the selection of all of the county commissioners for Camden County. Your county has c~osen to utilize the representative form of government somewhat similar to the form utilized by the Senate of the United States in that all of the commissioners are elected by all of the voters of the county.

OPINION 68-465 November 21, 1968
You forwarded to us an inquiry from the Ordinary of Sumter County, as to whether or not Federal Ia w makes it necessary for an ordinary, before changing or moving a polling place, to get permission from either the United States District Court in Washington, D.C., or the United States Attorn~ General.
Judge Horne's inquiry suggested to us another question, which is whether or not the 1965 Voting Rights Act requires an ordinary to obtain similar approval when changing an election district. These two questions were submitted to the Justice Department by letter dated September 30, 1968.
Enclosed you will find a copy of letter from the Justice Department, dated November 14, 1968, in which it is stated that the relocation of polling places and the changing of election district boundaries cannot be enforced unless and until approved by the Federal authorities.
I trust that you will make the reply of the Justice Department known to Judge Horne and the other affected election officials of the State.
OPINION 68-466 November 21, 1968
You asked for an official opinion as to whether or not the State Board of Education and local units of school administration are authorized to provide a free public education for children who reside on military bases. From the enclosures received with that letter, it appears that you need an answer to that question because the General Counsel for the United States Department of Health, Education and Welfare has ruled that the State of Georgia will be ineligible to receive certain federal funds because, in his opinion, certain opinions of former Attorneys General of Georgia (Ops Att'y Gen. 1941-43, p. 31; 1948-49, p. 516) cast doubt upon the authority of the State and of local units of school administration to provide a free public education for such children.
As you have pointed out, such children regularly attend the public elementary and secondary schools of this State and the

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State Board of Education allots Minimum Foundation Program of Education Funds to local units of school administration based upon such attendance.
In a letter to you dated October 18, 1968, Mr. Gerald M. Cherry of Health Education and Welfare states the following:
"In recent years, the Federal Government has relinquished to the States a considerable amount of authority over ceded Federal reservations. It has given to the States the power to apply their own workman's compensation laws, the right to collect taxes on gasoline on military reserva~ions, the right to collect income tax from residents in Federal areas, and the right to collect sales and use taxes therein."
It would appear, however, that the legal power of the several States to collect taxes from servicemen is not as clear as Mr. Cherry's statement would lead one to believe it is. In this regard, please see, for instance, United States v. Sullivan, 398 F.2d 672 (2d Cir. 1968 ).
Further, irrespective of the existence or nonexistence of legal questions as to the power of the States to tax persons in various categories of federal service or employment, or their different classes of property or activities within or without the boundaries of federal reservations, it would appear that the State of Georgia has been somewhat less than successful in its efforts to collect taxes from such federally related persons. For instance, I understand that the State has been singularly unsuccessful in collecting sales tax from the various nonappropriated fund activities on military reservations. However, for purposes of this opinion, I shall assume the facts to be as stated by Mr. Cherry and shall assume that it is not the intention of the Federal Government to compel Georgia to educate the children of parents who do not pay their fair share toward such education.
OPINION
I am of the opinion that the State Board of Education and local units of school administration are authorized to provide a free public education for children who reside on military bases located within the State if, and only if, the parents, legal guardians or other adult persons responsible for the welfare of such children are liable for the payment of State income taxes and for the payment

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of State sales and use taxes on items purchased on such military reservations.
DISCUSSION
The basic educational policy of this State is to be found in Art. VII I, Sec. 1, Par. 1 of the Constitution of Georgia (Ga. Code Ann. 2-6401 as follows:
"The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided by taxation."
This policy is restated with different emphasis in Ga. Code Ann. 32-937, which provides, in relevant part:
"Admissions to all common schools shall be gratuitous to all children between the ages of six and 19 years residing in the districts in which the schools are located."
These provisions, and former provisions of the same or similar import, have been the subject of numerous decisions of our Supreme Court, the following being a representative sampling: Irvin v. Gregory, 86 Ga. 605 (1890); Wilson v. Stanford, 133 Ga. 483 (1909); Brewer v. Ray, 149 Ga. 596 (1919); Moore v. Brinson, 170 Ga. 680 (1930).
The question here posed also has been dealt with both directly and indirectly in the two Opinions of the Attorney General of Georgia to which you have referred. Ops Att'y Gen. 1941-43, p. 31; 1948-49, p. 516. Those opinions, I believe, correctly state that the public elementary and secondary schools of Georgia shall be free to children of parents who are residents of Georgia and who contribute to the support of such schools by the payment of taxes imposed by our State statutes. The conclusions reached therein are different from the conclusion suggested in this opinion because the factual assumptions upon which those opinions are based are different from those upon which this opinion is predicated. The answer presently given assumes that the parents, guardians or other adult persons responsible for the welfare of the subject children pay State income taxes and pay State sales and use taxes on items purchased on the subject military reservations, whereas it would appear that such taxing authority was not possessed by the State with reference to the parents of the children who were the subject of the former Opinions of the Attorney General.

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In considering the authority of local units to expend local funds for the education of the subject children, we must recognize that the State contributes the majority of the minimum and total funds expended for education in Georgia. See Ga. Code Ann. 32622(8)(2) as to the relative percentages, State and local, of such minimum funds. Further, as a matter of practice, many children whose parents pay little or no local ad valorem school taxes attend our public elementary and secondary schools. It would appear unjust for a local unit to be able to accept from the State payments of Minimum Foundation funds attributable to the attendance of the subject children and then deny the children the right to attend school unless they pay tuition. Such injustice has motivated our Supreme Court to estop a local unit from denying the right to a free public education to children for whom tax proceeds are received. Peak v. Board of Education of Cuthbert, 177 Ga. 176 (1933). Also, a local unit may lose State funds if it fails to provide or use its required local effort under the Minimum Foundation Law. Ga. Code Ann. 32-645.
Based upon the law and fact assumptions stated herein, I must conclude that the State and local units of school administration are authorized to provide a free public education for the subject children.

OPINION 68-467 (Unofficial)

November 22, 1968

You requested an unofficial opmwn as to whether or not the Sheriff of Washington County is entitled to any fee or any part of monies received from the sale of a motor vehicle confiscated in the hauling of non-tax paid whiskey in addition to his salary.
To answer this question it is necessary to be aware of several different Georgia laws. Ga. Code Ann. 24-2823, as amended, enumerates the fee for various services in civil and criminal cases. Ga. Code Ann. 24-2826 abolished the fee system as a method of compensation for county sheriffs. In addition, Ga. Laws 1965, p. 2395, as amended (a local act) set the salary of the Washington County Sheriff at $10,000 per year and specifically provided that this was to " ... be in lieu of all fees, fines, forfeitures, commissions, costs, allowances, penalties, funds, monies, salaries,

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and all other emoluments and perquisites of whatever kind formerly allowed him as compensation for services in any capacity, ...."
In the case of Cloud v. DeKalb Co., 70 Ga. App. 777 (1944), the court held that the mere fact that a county policeman received a salary did not preclude him from receiving the fee provided under Ga. Code Ann. 58-207 for his part in the seizure and condemnation of automobiles engaged in the illegal transportation of liquor but in so holding the court stated that this was so, provided there was no other provision of law prohibiting him from receiving the compensation in addition to his salary. In the matter under consideration there is such a prohi biting provision of law.
Therefore, it is my unofficial opinion that the Sheriff is not entitled to the fee or money in question.

OPINION 68-468 (Unofficial)

November 22, 1968

You requested an unofficial opinion as to the applicability of the Real Estate Transfer Tax to a conveyance of real property from a wholly owned subsidiary corporation to the parent corporation in exchange for all of the outstanding stock of the subsidiary corporation pursuant to a plan of liquidation.

Ga. Code Ann. 92-801 of the Georgia Real Estate Transfer Tax Act was lifted word for word, except for the rate of the tax and the last sentence pertaining to the termination of the tax, from the Federal government's documentary stamp tax on conveyances, 26 U.S.C.A. 4361, as amended.

Several Federal cases have dealt with the applicability of the Federal tax to factual situations similar to the one presented here. Two United States District Court cases held that where the assets, including land, conveyed to the parent corporation by a wholly owned subsidiary in consequence of a plan of dissolution were more than sufficient to satisfy the subsidiary's liabilities there was no consideration for the conveyance and the conveyance of real estate was not subject to the documentary stamp tax. (SoconyVacuum Oil Co. v. Sheehan, 50 F. Supp. 1010 (E.D. Mo., 1943); Tide Water Associated Oil Co. v. Jones, 57 F. Supp. 482 (W.O. Okla., 1944)). Two later cases modified the earlier decisions

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somewhat and held that where the assets, including land, conveyed to the parent corporation by a wholly owned subsidiary in consequence of a plan of dissolution were more than sufficient to satisfy the subsidiary's liabilities there was consideration for that portion of the assets' value necessary to discharge the indebtedness of the subsidiary but there was no consideration as to the excess of the assets' value above such indebtedness and consequently the amount of documentary stamps attached to the conveyance should be proportional to the value of the real estate necessary to discharge the indebtedness of the subsidiary corporation. (R. H. Macy & Co. v. United States, 107 F. Supp. 883 (S.D.N.Y., 1952); Greyhound Corp. v. United States, 208 F.2d 858 (7th Cir., 1954)).
Also, one of the administrative regulations applicable to 26 U.S.C.A. 4361, when it was in effect is found in 2 Fed. Tax Reg. '67, 43-4361-2(a)(8) and it reads:
"(a) Conveyances subject to tax. The following are examples of conveyances subject to the tax:
"(8) A conveyance of realty by a corporation in liquidation or in dissolution to its shareholders subject to the debts of the corporation; however, if there are no corporation debts and the conveyance is made solely for cancellation and retirement of the capital stock, the tax does not apply."
It is well-established Georgia law that when the General Assembly adopts a statute from another state the judicial construction placed thereon by the highest court of that state accompanies the statute and it is treated as incorporated therein. (Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 (1931); Tamiami Trail Tours. Inc. v. Georgia Public Service Commission, 213 Ga. 418 (1957)).
However, the Federal cases on this point are not from the highest court in the jurisdiction from which the statute was adopted and, therefore, not controlling but they may be strongly persuasive (Superior Pine Products Co. v. Williams, 214 Ga. 485 (1958)).
From the a hove it would seem that the holding in the Macy case and the Greyhound Corp. case as set forth by the above federal regulation should be applied.

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OPINION 68-469 (Unofficial)

November 25, 1968

You have requested the Department of Law to advise you whether or not the Solicitor General of the Cherokee Judicial Circuit is required by law to represent the State in traffic offense cases which are tried in the Court of Ordinary.

Art. VI, Sec. I I, Par. I I of the Constitution (Ga. Code Ann. 2-4602) provides that "It shall be the duty of the Solicitor General to represent the State in all cases in the Superior Courts of his Circuit and in all cases taken up from the superior courts of his circuit to the Supreme Court, and Court of Appeals and to perform such other services as shall be required of him by law." Ga. Code Ann. Ch. 24-29 specifies the duties of solicitors general. Both the Constitution and the statutes defining the duties of the solicitors general speak in terms of duties with respect to the superior courts and appeals.

The powers of all public officers in this State are defined either by statute or by the Constitution, or both. Decatur County v. Roberts, !59 Ga. 528 (1924); Hunter v. City of Atlanta, 2!2 Ga. 179 (1956), "Where the Constitution creates an office and prescribes the duties of the holder thereof, and declares that other duties may be imposed on him by statute, he has no authority to perform any act not legitimately within the scope of such statutory and constitutional provisions." Waf ker v. Georgia Railway and Power Company, 146 Ga. 655, 656 (1917), and the cases cited therein.

I am cognizant of the general provision at the end of Ga. Code Ann. 24-2908 which provides that a solicitor general shall perform duties which necessarily appertain to his office. It appears to me, however, that prosecution of criminal cases in courts other than in the superior courts is not a duty which necessarily appertains to the office of solicitor general. An officer cannot be compelled to perform an act which is not clearly authorized by law. Day v. Kelley, 218 Ga. 688 (1963). Therefore, it is my opinion that the Solicitor General of the Cherokee Judicial Circuit is not required to prosecute traffic violators in the Court of Ordinary.

OPINION 68-470 (Unofficial)

683 November 25, 1968

You have requested by unofficial opinion as to whether a person can be a member of a Democratic Party County Committee and also serve on the County Board of Registrars.

The Georgia Election Code provides:
"Registrars and deputy registrars shall be electors of the county in which they are appointed and shall be able to read, write and speak the English language. No person, while serving as a registrar or deputy registrar or within a period of six months after so serving, shall be eligible to any nomination or office to be voted for at a primary or election, provided, however, that this ineligibility shall not apply to a tax commissioner or tax collector, or to any candidate for such office of tax commissioner or tax collector. No person shall be eligible to serve as chief registrar unless such person owns an interest in real property located within the county or unless such person is the spouse of such a property owner." Ga. Code Ann. 34-605.
Assuming that a person is otherwise qualified under Georgia Law for a position on the County Board of Registrars, it is my unofficial opinion that membership on the Democratic Party County Committee would not disqualify the person so long as members of the County Committee are not voted for at a primary or election.

OPINION 68-471

November 26, 1968

This is in reply to your request for my official opinion on the following questions:

1. In the case of a sign which was in existence prior to the effective date of the Control of Advertising Adjacent to Certain Highways Act and which can be maintained until July l, 1970, without complying with these provisions, can the State Highway Department issue permits to other advertisers to erect signs at the same location prior to July l, 1970, or until such time before July l, 1970, when the prior advertiser has complied with this law?

684
2. Under the scope of the provisions and definition of this Act, if a permit is issued to one advertiser for the erection of a sign at a specific location, can the State Highway Department issue a permit to a second advertiser for the erection of a second sign at the same location?
3. In the event a permit can be issued to a second advertiser at the same location as another sign, would the second advertiser be required to obtain permission from the first advertiser before a permit can be issued to the second?
4. Under the provisions iof this Act, Ga. Laws 1967, pages 423 and 426, Section 3, paragraph (f), and page 425, Section 2, paragraph (i), does the term "adjacent area" contemplate a distance in miles based on radial distance from the city limits or does this mean a distance in miles measured along the highway that enters the incorporated municipality?
It is my official opinion that:
I. Under the provisions of this Act, a prior advertiser (that is, an advertiser who has erected signs prior to the effective date of this Act) is given an established right to have his sign located on this specific location until July 1, 1970, without complying with this Act. It is my official opinion that the State Highway Department can issue a permit to another advertiser to erect a sign at this same location as long as the prior advertiser has not already exhausted the limits as to the number of signs that may be erected in one specific location.
2. The provisions of this Act limit the number of signs that may be erected at a specific location. If one advertiser has not obtained permits and exhausted these limits, then the State Highway Department may issue a permit to a second advertiser for the erection of other signs on the same location as long as the number of signs does not exceed the limits as provided by this law.
3. It is my official opinion that the question of whether a second advertiser must obtain permission from the first advertiser would be a question of fact which would be determined- by the lease agreement between the first advertiser and the landowner on whose property these signs are to be located.
4. It is my official opinion that under the terms of this Act, in order for a sign to be considered as located in a business area

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adjacent to an incorporated municipality, the sign or display must be located along a high way which enters an incorporated municipality. Therefore, it is concluded that the provisions of Section 3 (f) of this Act, which call for distance in mileage adjacent to an incorporated municipality, must be measured along a high way that bisects the incorporated municipality's geographical limits.
For purposes of clarity and expediency, the discussion of the above opinions will follow the order in which the opinions are hereinabove numbered.
First of all, in regard to your first question, the pertinent provisions which we are concerned with in determining an answer to this question are found in Ga. Laws 1967, pp. 423,429, 7:
"Any sign, display or device lawfully in existence on the effective date of this Act within 660 feet of the nearest edge of the right-of-way of any State-aid road, which is also a part of the Federal Interstate or Primary System of Highways as defined by Title 23 of United States Code, may continue to be maintained until July 1, 1970, but may not be replaced (except advertising copy) or relocated on such highways except in areas where otherwise allowed by Section 3 of this Act or pursuant to regulations adopted hereunder. . . ."
From the wording of this provision, it is evident that the Legislature intended that all prior advertisers whose signs were in existence and erected before the effective date of this Act (April 6, 1967) would have a right to maintain these signs without complying with the provisions of this law until July 1, 1970. Thus, in effect, it is concluded that these persons whom we will refer to as prior advertisers have been placed on the same basis and have been given the equal rights as those advertisers who presently are complying with the provisions of this law by obtaining permits in order to erect signs. Thus, these prior advertisers will have until July 1, 1970, before they will be required to make application for a permit under the provisions of this law. If after this date the prior advertiser fails to comply with this law, then he may be subjected to the penal provisions set forth in other sections of this law.
As will be discussed hereinafter in response to your second question, it is concluded that the Legislature, in effect, established

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a statutory system of priorities for advertisers in relation to location. In effect, if a prior advertiser has a lease agreement for a specific location and a second advertiser also has a similar lease agreement for the same location, then, in effect, this law establishes a de facto permit for the prior advertiser to be used until July 1, 1970, at which time he has the election to renew this permit by complying with the provisions of this law regarding application for permits. After July 1, 1970, the question of who has priority to this location would depend upon whether or not the prior advertiser had applied for a permit before the expiration date or, on the other hand, if he had failed to apply for a permit until after July 1, 1970, whether or not the second advertiser had applied for such permit. However, it should be pointed out that a prior advertiser has this priority only with those signs which were already erected prior to the effective date of this Act. Thus, in a particular location, a prior advertiser may have erected less than the total number of signs which are allowed by this Act at one particular location. In this case, depending on the lease agreement between the prior advertiser and the property owner, if the prior advertiser is not given exclusive rights to this location, the State Highway Department may issue a permit to a second advertiser for the erection of a sign at the same location.
In reference to your scond question, a solution to the problem hinges around the meaning of the term "location" as it is used by the Legislature in this Act. In the section set aside by the Legislature for the definition of terms in Section 2 of this Act, paragraph (h) (Ga. Laws 1967, pp. 423, 425), the term location is here defined as, "a place where there is located not more than two double faced or V-type signs." (Emphasis added.) It is an old principle of statutory construction that in an interpretation of a statute, that the statutory definition of various words is binding. Union Dry Goods Company v. Cook, 71 Ga. App. 708, 32 S.E. 2d 190 (1945). Although this statutory definition of the term location is apparently obvious in meaning, yet the question still is left unanswered as to exactly how many advertisers may erect signs in one specific location. In such a situation where a statute contains words, the meaning of which the general acceptation is apparently obvious and yet the purpose of the Legislature would be defeated where the words employed are construed literally, then such words may be construed in connection with the context and the legislative intent may be ascertained and derived from a

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consideration of the entire law, the evil sought to be remedted, and the remedy provided. See Blackshear v. Liberty Mutual Insurance Co., 69 Ga. App. 790, 26 S.E.2d 793, reversed 197 Ga. 334, 28 S.E.2d 860 (1943).
Also, it is a general principle of statutory construction that the legislative intent must be determined from a consideration of the statute as a whole. Undercojler v. Capital Automobile Co., 111 Ga. App. 709, 143 S.E.2d 206 (1965). Therefore, we must go to other provisions of this law to obtain a final answer to this question. The most pertinent provision to be considered in answering this question is contained in Section 6 of this law dealing with permits (Ga. Laws 1967, pp. 423, 429). Under the terms of this section, the Legislature provided that only one permit shall be required for a double-faced, back-to-hack, or Vtype sign. Thus, construing these two provisions of this Act together, it can be seen that there are several probable situations which would arise in regard to a certain advertising location. In essence, Section 2, paragraph (h) has limited the number of signs which may be placed at one particular spot to two double-faced signs or two V-type signs. The only possible limitation that Section 6 places on an advertiser would be that in order to have two double-faced signs or two V-type signs erected at one location, the advertiser must obtain two permits. However, it should be pointed out that these provisions do not thereby grant a statutory monopoly to the advertiser who first obtains a permit for an erection of a sign at this location. Theoretically this would be possible, however, if the same advertiser obtained permits for two double-faced signs or two V-type signs. On the other hand, there is no prohibition against the possibility of having four single signs, back-to-hack, erected pursuant to permits issued to four different advertisers. Thus, at one location, the State Highway Department may issue a permit or permits for one and not more than four single-faced signs. This situation, however, would always depend upon the actual lease agreement which existed between the landowner and the advertiser. Bearing in mind the above principles, it can be seen that the question of whether or not a second advertiser must obtain permission from a prior advertiser before a permit can be issued to this second advertiser is a question of fact which would depend upon the lease agreement between the landowner and the advertiser and cannot be dealt with by our Departments. As long as the limits as to the number of

688

signs at one location have not been exhausted, then your Department is authorized to issue permits in compliance with the law, and the question of the advertising rights as to a specific location must be worked out among the parties involved. It is hoped that this has, in essence, answered your third inquiry.

In order to answer your fourth question, consideration must be given to two provisions of this Act. First of all, in Section 2, paragraph (i) (Ga. Laws 1967, pp. 423, 425), the Legislature has included as part of its definition of the term "business area" any adjacent area which is located within the approaches of an incorporated municipality. In Section 3, p:"ragraph (f) of this Act, certain areas are exempt from regulation. One of these areas is designated as a business area adjacent to an incorporated municipality. Following this designation, there is set forth a distance allowed from the municipality and in each distance measured in miles there is provided the words "miles adjacent". The problem then is whether this term "adjacent" contemplates a location on a highway which approaches and intersects an incorporated municipality or whether it contemplates the situation in which a high way bypasses a municipality's incorporated limits, but is within the radial distance set forth in this section and,
therefore, is to be considered as "adjacent". It is my opinion that
if a road does not intersect any part of the incorporated boundaries of a city, then Section 3 (f) does not apply. A highway must actually intersect or go through a portion of the incorporated bound&ries of a municipality for this section to apply. The key words, I believe, are contained in Section 2 (i) (2):

" .... or an adjacent area which is located within the

approaches to an incorporated municipality .

"

(Emphasis added.)

Thus, it is concluded 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. Therefore, it is concluded that the distances, as set forth in Section 3 (f), should be measured from the sign location on the road which approaches the incorporated municipality to the intersection of that roadway and the city limits. In essence, we follow the well established principle of Georgia law that all parts of a legislative enactment should, if possible, be harmonized and so construed as to reconcile apparent conflicts so as to give effect

689
to the apparent intention of the law makers [Harris v. State, 221 Ga. 398 (1965)]. Thus it is my judgment that the word "approaches" is the key word in making this determination.
The above conclusion is supported by the Georgia appellate court's interpretation of the words "approach" and "adjacent". In the case of Beadles v. Bowen, 106 Ga. App. 34 (1962), the Court of Appeals construed a provision of a statute which contained the terminology "upon the approach" to a stop sign. The Court of Appeals held that the approach, as used in this statute, means a part of the highway system or right-of-way. Also in the case of Central of Georgia Railway Co. v. Evans, 172 Ga. 53, 56 (1931) the Supreme Court concluded that the word "adjacent" employed a meaning synonymous with the words "adjoining" or touching".

OPINION 68-472 (Unofficial)

November 26, 1968

This is in reply to your recent letter inquiring as to whether or not trading stamps were covered by Opinion 68-442 dealing with gift enterprise schemes and lotteries.

The giving of trading stamps as it is generally practiced by our local merchants was not in valved in that opinion and, therefore, is not in violation of the lottery statutes unless the trading stamps are given as a prize in some gift enterprise scheme or lottery.

OPINION 68-473 (Unofficial)

November 26, 1968

You requested an opinion as to whether or not the utilization of ASCS crop allotments upon farm lands as a measure of the value of such lands for the assessment and equalization of ad valorem taxes is legal.

The case of O'Quinn v. Ellis, 224 Ga. 328 (1968), dealt with the use of tobacco allotments as a basis to fix the value of real property for ad valorem tax purposes in Jeff Davis County. Even a cursory reading of the case makes it clear that such an allotment cannot be considered even though it does affect the fair market value of the land.

690
Therefore, based on the above decision it is my unofficial opinion that an ASCS crop allotment upon farm land cannot be used as a measure of the value of such land in the assessment equalization of ad valorem taxes.

OPINION 68-474 (Unofficial)

November 26, 1968

This is in response to your letter attached to an application for refund for a tax paid under the Real Estate Transfer Tax Act on a fifteen (15) year lease, wherein you contest the application of the Georgia Real Estate Transfer Tax (Ga. Laws 1967, p. 778, as amended by Ga. Laws 1968, p. 1102; Ga. Code Ann. 92-901 et seq.) to said long-term lease of real estate.

The pertinent part of the statute in question reads:

"There is hereby imposed on each deed, instrument or other writing by which any lands, tenements or other realty sold shall be granted, assigned, transferred or otherwise conveyed to, or vested in, the purchaser or purchasers, or any other person or persons, by his or their direction, when the consideration or value of the interest or property conveyed . . . exceeds $100, . . . ."

There has been some question as to the meaning of some of the words and phrases used in the above quoted part of the statute. Therefore, it may be desirable at this time to discuss some of them as to whether or not an estate for years under the Georgia law is within the ambit of their meaning.
Certainly there can be no question that the instrument by which an estate for years is conveyed from one person to another is covered by the words "deed, instrument or other writing". Mitchell states that "an estate for years may be created by will or by deed. A deed conveying an estate for years is technically known as a 'lease"'. (Mitchell, Real Property in Georgia. Ch. 18, p. !51). In fact, the Georgia law requires that such an instrument meet the same standards as applied to the creation of other estates. (II E.G.L. 110, p. 134).

It is also clear that the words "lands, tenement or other realty" encompass an estate for years. An estate for years is an interest

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in land (ld. 121, p. 136) and it passes as realty (Ga. Code Ann. 85-80 I).
A sale, in its broad sense, is any contract for the transfer of property from one person to another for a valuable consideration. (Ryman, Georgia Words and Phrases. p. 724). "An estate for years may be bought and sold as any other real estate, even against the consent of the grantor, if there be nothing in the deed to prevent it". (Clark v. Herring, 43 Ga. 226(a) (1871). It is presumed that the General Assembly has full knowledge of the existing conditions of the law and their enactments are to be construed in connection and in harmony with the existing law. (Spence v. Rowell, 213 Ga. 145 (1957). When this rule is applied to the word "sold" it is not inconsistent with the application of the act to an estate for years.
The words "granted, assigned, transferred or otherwise conveyed to or vested in" are as applicable to an estate for years as to other interest in real estate.
A purchaser is one who acquires an interest in real property other than by descent.
From the above it would seem abundantly clear that Opinion 68-157 is correct unless its interpretation is controlled by some other consideration.
While it is true that the Georgia Real Estate Transfer Tax Act was lifted almost verbatim from the Federal Documentary Stamp Act (27 U .S.C.A. 4361) and while it is also true that when the General Assembly adopts a statute from another state it also adopts the judicial construction placed on the statute by the highest court of that state (Tamiami Trail Tours. Inc. v. Georgia, 213 Ga. 418) it is not true that the administrative regulations pertaining to that statute are also adopted. While such regulations certainly should be considered they are persuasive only if they are not contrary to existing Georgia Ia w.
Here, no decisions of the United States Supreme Court reaching the point in question could be found and the federal regulations would seem to be in conflict with well established Georgia law. In fact, the federal interpretation did not represent the law of any particular state but was adopted in an attempt to achieve uniformity as the laws of the several states vary greatly

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as to just what is or is not real estate. (Phillips Petroleum Co. v. Jones, 176 F.2d 737 (10 Cir. (1949)).
As the lease in question is for fifteen (15) years and it is clear from the terms of the lease that the parties did not intend to pass a mere usufruct the presumption is that an estate for years was conveyed.
Therefore, it is my unofficial opinion that the Real Estate Transfer Tax Act is applicable to a conveyance of an estate for years and the request for refund should be denied.
OPINION 68-475 November 26, 1968
This responds to your request for my official opinion as to whether or not the Solicitor-General for the City Court of Chattooga County may waive or renounce, pursuant to Ga. Code Ann. 102-106, participation in the Trial Judges and Solicitors Retirement Fund. Ga. Laws 1968, p. 259.
The answer furnished herein is founded upon the legal and factual assumption that Mr. Farrar's office is within the purview of the Act creating and governing this Fund and should not be interpreted as an expression of opinion on such applicability.
I am of the opinion that it is the intention of the General Assembly that any person whose office is within the ambit of the Act creating and governing the Fund shall participate in this retirement system commencing with the time provided in the Act and continuing until he ceases to hold the position or office covered by the Fund. I do not believe that such a person may waive or renounce such coverage.
In Section 8(d) of the Act, it is expressly provided:
"Any person holding office as a . . . solicitor of an inferior court on June 30, 1968, except those . . . solicitors of certain inferior courts who are members of the Employees' Retirement System under the provisions of an Act approved December 21, 1953 (Ga. L. 1953, Nov.-Dec. Sess., p. 305), said Act being an amendment to the Act establishing the Employees' Retirement System, approved February 3, 1949 (Ga. L. 1949, p. 138), shall be a member of said Fund and

693
shall begin making employee contributions to said Fund as provided for hereinafter." Ga. Laws 1968, pp. 259, 264.
Neither in that section nor elsewhere throughout the Act do find any express statutory authorization enabling a person to elect not to participate in the retirement system. Provisions authorizing such elections are to be found in other state retirement Ia ws. See, e.g., Ga. Code Ann. 40-2503(2), 47-1404.
There being no express provision in the Act authorizing such waiver, and the Act twice using the word "shall" with reference to participation, it would not be likely that a court would find an implied right to waive or renounce coverage. Sweat man v. Hartford Ace. & Indem. Co., 100 Ga. App. 734 (1959). Further, Ga. Code Ann. 102-106 authorizes a person to waive or renounce what the law has established in his favor only if such waiver does not injure the rights of others or affect the public interest. In applying the waiver principle of Ga. Code Ann. 102-106, the Georgia Supreme Court has held that where an officer's compensation is fixed by Ia w and exists as an incident of his office rather than by contract, he may not by his words or conduct waive such compensation or any part thereof. Hall v. Stulb, 126 Ga. 521, 523 (1906); Johnson v. Brooks, 139 Ga. 787, 791 (1913); MacNeill v. Steele, 186 Ga. 792 (1938). The retirement system fixed by the subject Act for solicitors general of inferior courts would seem, by analogy, as much an incident of their offices as the salaries which were the subject of the lastcited cases. Withdrawal of contributions upon ceasing to hold a position or office covered by the Fund, as distinguished from waiver or renunciation of coverage, is specifically authorized by Section 22 of the Act. Ga. Laws 1968, pp. 259, 273.
Based upon the foregoing authorities, it is likely that our Supreme Court would conclude that participation in the Fund by those persons holding covered offices is mandatory until such time as the General Assembly specifically authorizes a person occupying a covered office to elect non-membership.

OPINION 68-476 (Unofficial)

November 27, 1968

This is in reply to your letter and our subsequent telephone conversation wherein you ask whether common stock of Whitney

694
Holding Company, owned by a Georgia resident, is taxable under the Georgia Intangible Tax Act and whether the income received from such stock is taxable under the Georgia Income Tax Act.
As stated in your letter, the only function of the Whitney Holding Company is the 100% ownership of the stock of Whitney National Bank of New Orleans, Louisiana. I assume that the Whitney Holding Company is incorporated in Louisiana and has no connection with the State of Georgia. This office has no additional information available concerning the organization or operation of this company.
A bank holding company is an entity distinct from that of the bank or banks which it controls and manages. Irvine v. Spaeth, 210 Minn. 489, 299 N. W. 204 (1941 ), cert. denied 314 U.S. 575, 62 S. Ct. 117, 86 L. Ed. 466 (1941). Being a separate legal entity, stock in the holding company is not stock in the National Bank and dividends received from stock of a holding company are not dividends received from a National Bank. Consequently, a holding company does not act as a conductor of the immunity presently enjoyed by National Banks. I know of no provisions, State or Federal, which would exempt this property or the income therefrom from taxation in Georgia.
Therefore, it is my unofficial opinion that common stock of Whitney Holding Company, owned by a Georgia resident, is taxable under the provisions of the Georgia Intangible Tax Act and the dividends received from the holding company are taxable under the provisions of the Georgia Income Tax Act.
OPINION 68-477 November 27, 1968
You have forwarded to me:
1. A strip copy of Resolution Act No. 121 (Ga. Laws 1968, p. 1532) proposing an amendment to the Constitution so as to create the Lee County Development Authority, which was submitted to the electors in the area affected at the 1968 November General Election. The proposed amendment was numbered 98 and the vote thereon was 736 for ratification and 252 against ratification.
2. The transmittal letter dated October 2, 1968,

695
tran~mitting said proposed amendment to the Lee County Journal, Leesburg, Georgia.
3. The envelope in which such proposed amendment and transmittal letter were forwarded.
Upon examination, I ascertain that the envelope was mailed from the United States Post Office, Atlanta, Georgia, on October 3, 1968, and received by the United States Post Office, Leesburg, Georgia, on October 4, 1968. The envelope and contents were returned to the sender unclaimed. I was further able to ascertain that the envelope bears additional postmarks of the United States Post Office, Federal Annex, November 16, 1968, and United States Post Office, Capitol Hill Station, Atlanta, Georgia, November 18, 1968.
The envelope and its contents were delivered to the Executive Department on November 18, 1968, sealed and apparently unopened.
The Resolution proposing an amendment to the Constituion so as to create the Lee County Development Authority apparently was not published in the Lee County Journal or any other publication.
You have requested my official opinion on the following questions:
I. Notwithstanding the fact that a majority vote of the electors of the area affected were in favor of ratification of said proposed amendment to the Constitution, would the ratification of said proposed amendment fail because it was not published as provided by Art. XI I I, Sec. I, Par. I, of the Constitution of the State of Georgia?
2. In the event I am of the opinion that said proposed amendment would fail because it was not properly published, would the Governor proclaim that said proposed amendment did not pass when issuing his proclamation after the votes on said proposed amendment have been consolidated?
The Georgia Constitution provides for the publication of proposed local amendments as follows:
" ... [O]nce each week for three consecutive weeks immediately preceding the date of the election at which such

696
proposed amendment is submitted . . . . the Governor shall cause such proposed amendment to be published in full in one newspaper of general circulation in each county in which the directly affected political subdivision or subdivisions are located." Art. XIII, Sec. I, Par. I (Ga. Code Ann. 2810 I).
You state that there was a complete and total failure to comply with the publication requirement since the proposed amendment was not published in the Lee County Journal or any other publication.
The procedures and requirements established for amending the Constitution are mandatory and must be strictly followed in order to effect a valid amendment. And none of the required steps may be omitted. Seago v. Richmond County, 2!8 Ga. 151, !54 (1962), cited with appro val in McCullers v. Williamson, 221 Ga. 358, 364 (1965). There is no need to discuss the doctrine of substantial compliance, first used in Hammond v. Clark, 136 Ga. 313 (1911) and broadened in its progeny, Macdronah Sales v. Wilburn, 180 Ga. 837 (1935) and Cartledge v. City Council o/Augusta, 189 Ga. 267 (1939), since there was no notice at all rather than some minor defect in the notice.
It is a very serious matter to alter the Constitution which is the fundamental Ia w of our State. To do so in view of a complete failure of notice as required by that very Constitution would fly in the face of our traditional notions of the democratic process. Georgia law is not alone in this regard. See Citr of Birmingham v. Bouldin, 280 Ala. 76, 190 So. 2d 271 (1966); Turner v. Lewie, 201 S. W. 2d 86 (Tex. Civ. App. 1947).
It is therefore my official opinion that the proposed amendment to the Constitution creating the Lee County Development Authority must fail. Your first question is answered in the affirmative.
The proposed amendment requires that the Governor issue his proclamation after the results of the election have been certified to him by the Secretary of State. Ga. Laws 1968, pp. 1532, 1939. Since the proposed amendment must fail, it is my advice that your proclamation record the failure of the amendment and the reasons for the failure. I believe this is proper legally and practically so that there can be no doubt as to the outcome of the proposed

697 amendment. To that end, I am enclosing a draft of the proclamation for your use if you so desire. I am also returning the envelope and its contents pursuant to your request.
Your second question is thus answered in the affirmative.

OPINION 68-478

December 2, 1968

You have for warded to me three insertions from The Darien News, Darien, Georgia, in which Resolutiqn Act No. 271 proposing an amendment to the Constitution so as to create the Mcintosh County Industrial Development Authority was published, and an invoice from The Darien News in the amount of $120.00 for publishing said amendment. The Darien News publication and the invoice were picked at random from the many invoices you have received from publishers throughout the State and you indicate that they are being submitted solely for the purpose of ascertaining accuracy in general.

You have requested my official opinion on the following questions:
l. Are the rates for publishing legal advertisements as stated in Code Section 39-1105 the rates to be used in publishing constitutional amendments?

2. Is the invoice submitted by The Darien News correct?

As you know, the law setting forth the rates allowed to publishers for publishing legal advertisements was amended in 1968 so as to increase the rates. The law now provides:

"The rates to be allowed to publishers for publishing legal advertisements shall be as follows: For each 100 words, the sum of $2.50 for each insertion for the first four insertions; for each subsequent insertion, the sum of $1.50 per 100 words. In all cases fractional part shall be charged for at the same rates; and no ordinary, sheriff, coroner, clerk, marshal or other officer shall receive or collect from parties, plaintiff or defendant, other or greater rates than herein set forth." Ga. Code Ann. 39-1105 as amended by Ga. Laws 1968, p. 126.

The issue to be resolved, then, is whether a proposed

698
constitutional amendment is a legal advertisement within the purview of Ga. Code Ann. 39-1105.
My research has. not uncovered a Georgia statute or case whic~ specifically defines "legal advertisement". According to common usage, "legal" means of or pertaining to law; arising out of or by virtue of, or included in law; based on or governed by law. Roberts v. Love, 231 Ark. 886, 333 S. W. 2d 897 (1960); Beard v. Rickert Rice Mills, 164 So. 636 (La. App. 1935). A legal advertisement would be any advertisement which is required by the law, based on the law, or governed by the law.
Publication of a proposed constitutional amendment is required by the Georgia Constitution which is the fundamental law of Georgia. Art. XIII, Sec. I, Par. I, (Ga. Code Ann. 2-8101). Given the above premises, it follows that the publication of a proposed constitutional amendment is a legal advertisement.
The Ia w fixing the rate allowed for legal advertisements does not, on its face, exclude proposed constitutional amendments from its operation and I have found no authority construing the law which would do so.
Therefore, it is my official opinion that the rate to be paid publishers for publishing proposed constitutional amendments is the rate for publishing legal advertisements specified in Ga. Code Ann. 39-1105.
In response to your second question, the material submitted from your office indicates that the proposed constitutional amendment contained 1,524 words. Since the law allows $2.50 for each 100 words or fraction thereof, the rate of $40.00 for each insertion would appear to be correct.
It is therefore my official opinion that the invoice submitted by The Darien News in the amount of $120.00 for three insertions of a proposed constitutional amendment totaling 1,524 words would be correct.

OPINION 68-479 (Unofficial)

December 2, 1968

You requested an unofficial opinion as to whetheror not a taxpayer is entitled to a refund of certain ad valorem taxes based

699
on the contention that after retllcrning and paying to one county said tax on a large tract of land for several years he learned that a portion of said tract was in fact located in another county and that he had also paid the ad valorem taxes on said portion in the other county.
An unofficial opinion to Mr. James C. Owen, Jr. (Op. Atty. Gen., 1958-59, pp. 379, 380), although not specifically directed at the question posed by you, does provide a guideline as to the answer to said question.
It would seem from this opinion that even though the taxpayer may be entitled to a refund under Ga. Code Ann. 20-1007 as this may be a mistake of fact as opposed to a mistake of law, his claim would still be controlled by Ga. Code Ann. 23-1602, which requires "all claims against counties must be presented within twelve months after they accrue or become payable. . . ."
Therefore, it is my unofficial opinion based on the interpretation of the above Code sections as set forth in the enclosed opinion that the taxpayer is barred as to any claim that accrued over twelve months prior to the submission of said claim.

OPINION 68-480 (Unofficial)

December 2, 1968

This responds to your request for an unofficial opinion as to whether or not the Board of Trustees of the Trial Judges and Solicitors Retirement Fund legally may transact business during a meeting held without notice to, or the knowledge of, the two ex officio members.

I am of the opinion that the transactions of the Board of Trustees at a meeting held under the foregoing circumstances would be subject to question and should be ratified at a properly called meeting.

Section 1 (c) of the Act establishing this Fund defines the word "Board" as:
" ... the Board of Trustees of the Employees' Retirement System of Georgia and the ex officio members of said Board provided for in section 3 of this Act." Ga. Laws 1968, pp. 259, 261.

700
A concise statement of the general Ia w respecting notice of the time and place of meetings of public administrative boards is to be found in 73 C.J.S., Pub. Admin., 20, p. 314, as follows:
"Generally, no power or function entrusted to an administrative body consisting of a number of persons may be legally exercised without notice to, or knowledge of, all of the members composing such body. A rule fixing a time and place for regular meetings adopted by the body with the knowledge of all its members is sufficient to bring home notice or knowledge of regular meetings."
It would appear that any question which might exist with reference to the actions of the Board at such a meeting could be obviated by the simple expedient of ratifying such actions at a properly called meeting.

OPINION 68-481

December 3, 1968

You requested an opmwn as to lease agreements by a single county commissioner extending beyond his term of office.

In your letter you stated that in certain Georgia counties there exist insufficient county-owned office space to house the County Departments of Family and Children Services which administer Georgia's County administered welfare programs. Furthermore, you stated that in such situations, the County Commissioner or County Commissioners lease suitable office space for use by the County Departments of Family and Children Services.

Finally, under the above circumstances you requested my opinion on the following question:

Whether a county having a single commissioner can enter into such a lease agreement which would extend beyond the expiration of the commissioner's term of office?
In McElmurray v. Richmond County, 223 Ga. 47 (1967), McElmurray and others brought an action to enjoin the construction of a public building in Richmond County. The building was to be used as office space for the Richmond County Department of Family and Children Services. The agreement which was attacked was in the form of a lease, but McElmurray argued that same was, in essence, a contract for the erection of a building on county

701
property and that, if the agreement were construed as a lease, that it created a debt without the approval of the voters of the county and that the agreement also bound future governing authorities of the county in violation of Ga. Code Ann. 69-202.
The Court found that the title to the property was not in the county, but in a third party, i.e., the lender of funds to the contractor who had purchased the property from a third party with such borrowed funds for which he executed a deed to secure debt thus placing the title to the property in said lender. Therefore, the Court found that since the lender was not a party to the s,uit, McElmurray could not succeed on this theory since a finding would be necessary showing title in the county, thus impairing the lender's title.
In 223 Ga. 49(4), the Court stated that:
It is contended that under Code 69-202 which is applicable to counties as well as cities (A ven v. Steiner Cancer Hospital, 189 Ga. 126 (5 SE2d 356)), the lease is void as it binds the future governing authorities of Richmond County and thus prevents free legislation with reference to the subject matter, and that the lease creates a debt without the approval of the voters as is required by Art. VII, Sec. VII, Par. I of the Constitution (Code Ann. 2-6001 ).
Furthermore, the Court stated that:
In Macon Ambulance Service v. Snow Properties, 218 Ga. 262 (127 SE2d 598), it was shown that where the continued existence of the contract is based upon the continued approval of the public authority making the contract, then such a contract does not clash with the constitutional and statutory prohibition pointed out above, but where the effect of the contract results in creating a debt, other than to supply casual deficiencies, without the approval of the voters and binds the future governing authorities the contract is void from its inception. See Barwick v. Roberts, 188 Ga. 655 (4 SE2d 664), for a thorough discussion of the prohibitive contracts and their effects.
For your information, Ga. Code Ann. 69-202 referred to above, provides that "one council may not by ordinance bind

702
itself or its successors so as to prevent free legislation in matters of municipal government."
Thus, the Court did find that the contract was void from its inception since it showed on its face that it created a debt payable each year for ten years and that same was without the approval of the voters and ". . . binds future governing authorities without their approval contrary to constitutional and statutory authorities . . . ." 223 Ga. 47, 49.
In view of the above-cited a.:uthorities, it is my official opinion that, irrespective of the fact that the County to which you referred has a single County Commissioner, a lease contract that creates a debt which is not subject to the continued approval of the public authority which made the contract is void since it binds future governing authorities. Therefore, the question which you posed must be answered in the negative.
As indicated in the McElmurray case, supra, a lease contract is permissible on a year to year basis with a renewal clause subjecting the contract to a year to year approval by the public authority which executes and enters into the contract. This information is called to your attention in order that you might consider the utilization of such an agreement in the operation of your Department. See: Op. Atty. Gen. 1950-1951 p. 39. But compare: Richmond County v. McElmurray, 223 Ga. 440 (1967).

OPINION 68-482 (Unofficial)

December 4, 1968

This is in response to your letter wherein you requested a ruling as to whether or not the following promotional scheme is a violation of the Georgia Criminal Code:

"The merchant, without consideration, hands out the cards to his customers, and the customer can punch his cards each week at the checkout counter or the checkout clerk can do this upon request of the customer. It is not necessary for the customer to buy any merchandise or pay any consideration for the privilege of carrying one of the cards. On each Saturday afternoon, the merchant has some child who happens to be in the store to draw a card or number out of a large barrel in which each customer's card number is

703
deposited. If your number is drawn you get $100.00. If the lucky number does not call for the money within a certain time the prize i~ cumulative and may get up to $1000.00 or more dollars before the lucky number claims the money."
Recently the Attorney General rendered Opinion 68-442 pertaining to gift enterprise schemes and lotteries being conducted in Georgia.
From the copy of the Post Office Department ruling attached to your letter it would appear that the approval of the scheme by the Department was based on the lack of consideration. A review of the Georgia cases on this point will reveal that our courts would hold that there was consideration present. (See Boyd v. Piggly Wiggly, 115 Ga. App. 628, 155 S.E.2d 630 (1967)). But even if the Georgia courts held that the scheme as set out by you lacked consideration, the scheme would still be in violation of the Georgia Criminal Code as our code makes both lotteries and gift enterprise schemes a violation and the Georgia courts have held that a gift enterprise scheme needs no consideration. (See Baker v. State, 56 Ga. App. 705, 193 S.E. 605 (1937)).
Therefore, it is my unofficial opinion that the scheme as set forth in your letter is certainly a gift enterprise scheme if not a lottery and as such prohibited under the Georgia Criminal Code.

OPINION 68-483 (Unofficial)

December 4, 1968

This is in response to your letter asking whether Ga. Laws 1962, p. 595 is applicable when computing credit for retirement under the Superior Court Clerks' Retirement Fund. Ga. Code Ann. 24-2732, et seq. The answer to your question would appear to depend upon whether or not the Fund is a "local system" or "local pension plan" within the meaning of Ga. Laws 1962, p. 595, which provides:

MEMBERS OF GENERAL ASSEMBLY-CREDIT FOR SERVICE AS TO PENSION PLANS OF
POLITICAL SUBDIVISIONS.
No. 881 (House Bill No. 458).

An Act to provide that, when any member or former member of the General Assembly has been or shall be

704
employed by any political subdivision or elected to an office therein, where there is a local pension plan applicable to such employment or office, he shall receive credit for time served as a member of the General Assembly; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia, and it is hereby enacted by the authority of the same:
Section 1. Any person now or hereafter employed by any political subdivision or elected to an office therein who, by reason of such office or employment, is eligible for pension benefits under any local system and who, prior to such employment, was a member of the General Assembly of the State of Georgia, shall receive credit for time served in the General Assembly in the computation of the service required to become eligible to retire and receive a pension. In computing such credit, such person shall be credited for a full year for each year's membership in the General Assembly of Georgia.
Section 2. All laws and parts of laws in conflict with this Act are hereby repealed.
I am of the opinion that the unambiguous words "local pension plan" and "local system" can not be extended by construction to apply to the Superior Court Clerks, Retirement Fund, a Statewide retirement system. For the proper rule of statutory interpretation, see Burks v. Board of Trustees, 214 Ga. 251, 254 (1958).

OPINION 68-484 (Unofficial)

December 5, 1968

This is in reply to your request for an unofficial opinion on the question of the State Highway Department's rights, including the territorial extent and limits of a right-of-way on a county road which existed by virtue of an implied dedication and which has been converted into part of the State Highway Department's offsystem roads .

. It is my understanding that your question is limited to the situation in which there are no deeds or other documents dedicating a right-of-way width. You are specifically interested in the situation in which the State Highway Department has taken

705
over a road which was formerly a county road and one in which no right-of-way deed had been executed. Your question excludes the situation in which a road was laid out for public use by an act of the General Assembly.
In my judgment, in those cases in which there is an implied dedication; in other words, where there has been no expressed dedication oral or written by the property owner, the extent of the dedication (its width and territorial extent) is measured by the extent of the use; in other words, by the actual enjoyment of the public easement.
The Supreme Court of Georgi~ set forth the general principle of law which is applicable in this case in its decision of Georgia R.R. & Banking Co. v. City of Atlanta, 118 Ga. 486, 45 S.E. 256 (1903), when it stated:
"Private property can not be taken for public use without payment therefor; nor can this end be obtained under a claim of dedication, unless it appears that the owner has expressly given the property, or, by his long-continued acquiesence in the exclusive use thereof, signified an intention to devote it to public purposes." (Emphasis added.)
Where there has been an expressed dedication to public use and an acceptance by the public or public authorities, such acceptance extends to the limits of the expressed dedication. However, in cases of implied dedication, there is no dedication implied beyond the use. R. G. Foster & Co. v. Fountain, 216 Ga. 113, 119, 114 S.E. 2d 863 (1960); Ellis v. Mayor of Hazelhurst, 138 Ga. 181, 184, 75 S.E. 99 (1912); Adams v. Richmond County, 193 Ga. 42, 49, 17 S.E. 2d 184 (1941). Moreover, when dedication results from mere use and acquiescence, it is not to be inferred that the donor parted with more than the use necessitates. Brunswick & Western R.R. Co. v. Mayor of Waycross, 91 Ga. 573, 17 S.E. 674 (1893 ).
Applying the above principles of law to the question which you have propounded, it is concluded that when the State Highway Department accepts a county maintained road and intends to use this road as a part of the Department's system of roads, then the territorial extent and limits that can be used by the State Highway Department are confined to the territorial extent and limits of the former use by the county in the maintenance and use of this road.

706
This conclusion is supported by courts of other jurisdictions. In 26 CJS, Dedication, 51, p. 528, this principle is discussed:
"Where the right to a highway depends solely on user by the public, its width and the extent of the servitude imposed on the land are measured and determined by the character and extent of the user, since the easement cannot on principle or authority be broader than the user. This does not mean, however, that the public will be confined to the precise portion of the soil on which the wheels of passing vehicles may run, commonly called the 'track'."
Therefore, it is concluded that the State Highway Department would have the right to use only that portion of the land which had been maintained and used by the county prior to the con version of this road from a county maintained road to a Stateaid highway. If the State Highway Department is desirous of further land in order to increase the extent of the right-of-way, then it must do so only by purchase or under the right of eminent domain. See R. G. Foster & Co. v. Fountain, supra; Brown v. City of East Point, 148 Ga. 85, 95 S.E. 962 (1918); Donalson v. Georgia Power & Light Co., 175 Ga. 462 (1932); Harris v. Powell, 177 Ga. 15, 21, 169 S.E. 355 (1933).

OPINION 68-485

December 5, 1968

This responds to your November 21, 1968, request for my official opinion

"... as to the responsibilities of county boards of education under ... [Ga. Code Ann. 32-1401] including the responsibility for the preparation of the tax digests, the authority to defray the costs of preparation of the digests and the responsibility of the county board of education in the event that preparation of the digests for county tax purposes is delayed by county commissioners."

I must reiterate the view expressed to you in my official opinion of August 15, 1968, that, according to laws of general applicability, one of the specific duties of county boards of education is preparing tax digests and furnishing same to the tax collector of the county. Ga. Gode Ann. 32-1401. In accord: Op. Atty. Gen. 1954-56, p. 874; 1954-56, p. 875; 1954-56, p. 881; 1957, p. 263; 1960-61, p. 562.

707
I further must reiterate the belief expressed in the August 15, 1968, opinion that a county board of education may not delegate this duty to the county taxing authorities. Levine v. Perry, 204 Ga. 323 (1948); Bagwell v. Cash, 207 Ga. 222 (1950); Op. Atty. Gen. 1952-53, p. 28.
If the county tax digest has been prepared by the county taxing authorities, it would appear to me that the county board of education, if it so desires, simply could adopt such digest for school tax purposes and furnish such digest, as adopted by board action to the county taxing authorities. If, on the other hand, the county taxing authorities are dilatory in the preparation of the county digest, the county school board simply should perform its legal obligation by actually preparing the school tax digest and furnishing it to the county taxing authorities.
A legal distinction must be drawn between delegating to the local taxing authorities the responsibility to furnish the school tax digest and the utilization of the professional services of those persons to assist the county board of education in the performance of its legal obligation. It appears to me perfectly legal for the taxing authorities to do the pencil work, provided the county board of education exercises a final discretion as to what shall and what shall not be included in the digest furnished for school tax purposes. Hutchens v. Candler, 209 Ga. 415, 419(2) (1952).
Your final question, in essence, is whether or not a county board of education legally may contract with the county taxing authorities, or others, for technical assistance in the preparation of the school tax digest. Such a contract would appear to be legal, if specifically authorized by statute. Tietjen v. Mayor &c of Savannah, 161 Ga. 125 (1925); Hutchens v. Candler, 209 Ga. 415, 418 (1952). If, however, such a contract is not specifically authorized by statute, it would appear that the Supreme Court would hold that the law which lays upon county boards of education the duty to prepare and furnish the digest would negate, by implication, any power to contract with others in connection with the performance of such duty. Bagwell v. Cash, 207 Ga. 222 (1950); Graves v. Wall, 210 Ga. 271 (1954). I have not been able to locate any statute which would appear to authorize such a contract and, hence, am forced to conclude that a county board of education may not contract with the county taxing authorities, or others, for the performance of such professional services.

708
It would appear that your request for this official opinion was prompted by the discovery that many county boards of education were not discharging their obligations as set forth in Opinion 68348. In Bagwell v. Cash, supra, Chief Justice Duckworth, writing for the Court in response to a motion for rehearing which urged that other county tax assessors were violating the laws which were the subject of that opinion, wrote:
"We are not impressed by the mention of numerous other counties that have violated the law in similar fashion. Our sole concern is to uphold the law as written, and, if this disallows employment and payment for the services of others desired by the county, the lawful remedy and the only recourse is appeal to the legislature for enactment of laws authorizing such additional expenditures for additional employees." 207 Ga. at 225.
Similarly, the fact that the various county boards of education have not been following Ga. Code Ann. 32-1401 does not cause it to be any less the law. If its repeal is appropriate, a bill for such purpose should be introduced in the General Assembly.

OPINION 68-486 (Unofficial)

December 5, 1968

In your letter you stated that you appointed Mr. Chester Fowler as a local Constable for the 1901st G.M.D. for a term which expires on December 31, 1968.

Furthermore, you stated that it is your desire to appoint Mr. Fowler for a new term beginning January 1, 1969, and that you would ". . . like to have this arranged so there would not be any break in his terms, if this can be done." Finally, you inquire as to whether such can be accomplished and, if so, the proper procedure to use to handle such an appointment.
In answer to you~ inquiry, your attention is called first to Ga. Code Ann. 24-801 which provides that:

There shall be two constables in each militia district of the several counties elected by the people of each district who shall hold their offices for four years unless sooner removed. (Act 1829, Cobb, 213. Canst., Art. XI, Sec. II, Par. I ( 27901). 107 Ga. 697 (33 S.E. 439).)

709
Although Constables are to be elected by the people, the following provisions are made in Ga. Code Ann. 24-806 (1) for the filling of a vacancy in the office of Constable by a Justice of the Peace:
Vacancies are filled by appointment of the justice of the peace of the district, in the following contingencies: (Act 1811, Cobb, 201:)
l. When, from any cause, there is a failure to elect, qualify, and give bond at the regular time. . . .
Thus, assuming that no electioq of a Constable for the 190lst G.M.D. was held at the last General Election on November 5, 1968, it is my unofficial opinion that on January 1, 1969, a vacancy will exist due to the occurrence of the contingency listed above, i.e., the failure to elect a Constable at the regular time.
Therefore, since Mr. Fowler's term does not expire until December 31, 1968, a vacancy will not exist until subsequent to that date and the above Ga. Code Ann. 24-806(1) will not become operative until subsequent to December 31, 1968.
In conclusion, it is my unofficial opinion that you may not appoint Mr. Fowler to the position of Constable until a vacancy occurs and that a vacancy will not occur until January 1, 1969. Thus, in answer to your question, it is my unofficial opinion that an appointment cannot be made so as to prevent there being a break in the terms of Mr. Fowler.

OPINION 68-487 (Unofficial)

December 6, 1968

You ask whether or not motor vehicles equipped with studded tires may be operated upon highways in the State of Georgia. You have informed me orally that a studded tire is a pneumatic tire into the traction surface of which bits of metal or carborundum have been imbedded. I am informed that the metal or Carborundum studs do not project beyond the traction surface of the tread, but that such studs come in contact with the surface of the highway during normal and ordinary use of the tire.
A metal tire is ''every tire the surface of which in contact with the highway is wholly or partly of metal or other hard nonresilient

710
material." Ga. Code Ann. 68-1502(5)(c). Ga. Code Ann. 681720(b) prohibits the operation of any vehicle upon any highway in Georgia which is equipped with any metal tire which comes in contact with the surface of the roadway.
It is my opinion that the studded tire to which you refer is a metal tire within the meaning of Ga. Code Ann. 68-1720, and may not be used on vehicles operated in this State.

OPINION 68-488

December 6, 1968

You have requested my opm10n on whether the Georgia Constitution or the Georgia Election Code would prevail in the event of a conflict.

The Constitution is the fundamental State law of Georgia, and it would prevail in the event of a conflict with the Georgia Election Code. Art. XII, Sec. I, Pars. II and II I of the Georgia Constitution (Ga. Code Ann. 2-8002, 2-8003); Copland v. Wohlwender, 197 Ga. 782 (1944).

You further wish to know whether an Ordinary may use sections of both laws as he sees fit. Obviously, if there is a conflict between the two laws, the constitutional provision must prevail. Without additional information, I cannot answer your question with any further specificity.

OPINION 68-489
December 9, 1968
You request an opinion on the following questions:
(a) Whether it is legal for the Department of Veterans Service to finance Capital Outlay needs from Georgia Building Authority (Hospital) funds, and
(b) Whether title to facilities so constructed is vested in the Georgia Building Authority (Hospital) to the extent of possible later exclusion of the department's rights to utilization.
You have indicated that the Department of Veterans Service is in need of a new hospital to provide medical care to veterans.

711
From the attachments to your request, it is my understanding that your first question is whether the Department of Veterans Service can enter into a lease agreement with the Georgia Building Authority (Hospital) for the use of a hospital to be constructed by the Authority with funds derived from the issuance of revenue bonds.
Art. VII, Sec. VI, Par. I, of the Constitution of Georgia (Ga. Code Ann. 2-5901) provides, in part, as follows:
"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." (Emphasis added.)
Art. V, Sec. VI, Par. I, of the Constitution of Georgia (Ga. Code Ann. 2-3501) provides for a Department of Veterans Service and Veterans Service Board. Ga. Laws 1945, pp. 319, 320 (Ga. Code Ann. 78-401) provides:
"There is hereby created within the State Government a State Department of Veterans Service. . "
Ga. Laws 1966, pp. 155, 156 (Ga. Code Ann. 78-410) provides:
"The State Department of Veterans Service and the Veterans Service Board thereof shall be authorized:.
"(d) To construct and operate hospitals, ...."
The "Georgia Building Authority (Hospital) Act" (Ga. Laws 1939, p. 144, as amended) provides, in part, as follows:
"The Authority [Georgia Building Authority (Hospital)] shall have powers: . . .
"(5) to make contracts and to execute all instruments necessary or convenient, including contracts for construction of projects and leases of projects or contracts with respect to

712
the use of projects which it causes to be erected or acquired, and any and all departments or agencies of the State are hereby authorized to enter into leases or agreements with the Authority...." (Emphasis added.) (Ga. Code Ann. 991404).
"As used in this Chapter [Georgia Building Authority (Hospital) Act] the following words and terms shall have the following meanings: . . .
"(b) The word 'project' shall.be deemed to include hospitals, sanatoriums, dormitories and housing accommodations for the use of patients and officers and employees of any institution under the control of the State Board of Social Security or any other State agency or department, and all utilities and other facilities deemed by the Authority necessary or convenient for the efficient operation of any such hospital, sanatorium, dormitory, or housing accommodation." (Ga. Code Ann. 99-1402).
It is apparent from the above citations that the Georgia Building Authority (Hospital) can construct a hospital and enter into a lease agreement with the Department of Veterans Service, a Department of this State authorized to operate a hospital, for the use of such hospital. However, it should be noted that the Authority is limited to the sum of $60,000,000 of revenue bonds outstanding at any time. In addition, the Department is prohibited from entering into a contract or lease with the Authority under the conditions set forth in-Art. VII, Sec. IX, Par. II of the Constitution of Georgia (Ga. Code Ann. 2-6202) which provides, in part as follows:
"The State, State institutions, departments and agencies of the State are here by prohibited from entering into any contract with any public agency, public corporation or authority pursuat;~t to the provisions of Article VII, Section VI, Paragraph I [section 2-5901] (a), which such contract constitutes security for bonds or other obligations issued by any such public agency, public corporation or authority and the appropriation or expenditures of any funds for the payment of obligations under any such contract, is likewise prohibited at any time when the aggregate annual payments under all such contracts, including the contract or contracts proposed to be entered into, exceed 15 per cent. of the total

713
revenue receipts, less refunds, of the State Treasury in the fiscal year immediately preceding the making and entering into of any such contract; . . . . The execution of any such contract is further prohibited until the General Assembly has specifically provided funds in an Appropriations Act for the payment of at least one year's rental under such contract." (Emphasis added.)
Therefore, it is my official opinion that the Department of Veterans Service is authorized to enter into a lease agreement with the Georgia Building Authority (Hospital), after funds have been appropriated for at least one year's rental, for the use of a hospital building to be constructed by the Authority from proceeds derived from the issuance of revenue bonds for this purpose, provided that the $60,000,000 limitation as to outstanding bonds not be exceeded.
In response to your second question, the lease agreement which will be entered into between the Authority and the Department will provide that the Department will have the use of the building so long as the rental payments are made. In this connection, it is noted that the rentals contracted to be paid under the terms of a lease entered into pursuant to the provisions of the "Georgia Building Authority (Hospital) Act" constitute obligations of the State. Art. VII, Sec. VI, Par. I, of the Constitution of Georgia; Ga. Laws 1964, pp. 95, 97 (Ga. Code Ann. 99-1417). Further, such a lease will usually provide that once the provisions of the lease have been complied with the Authority will, at the request of the Lessee, execute and deliver to the Lessee a quit-claim deed conveying all of the rights, title and interests of the Lessor in and to the demised premises and improvements thereon.
Therefore, it is my official opinion that your second question should be answered in the negative provided the rental payments are made pursuant to the provisions of the lease.

OPINION 68-490 (Unofficial)

December 9, 1968

In your letter you state that recently the City of Sandersville began issuing licenses for the sale of beer and wine. In controlling

714
these sales the City of Sandersville adopted an ordinance which relates to the sale of beer and wine. Section 6 of this ordinance provides as follows:
"SALE TO MINORS
"(a) No person, engaged in the sale of beer or wine, shall make, or permit to be made, any sale of any beer or wine to any person under 21 years of age.
"(b) It shall be unlawful for any person under 21 years of age to purchase any beer or wine. It shall also be unlawful for any person to purchase any beer or wine for any other person who is under 21 years of age.
"(c) It shall be unlawful for any person under 21 years of age to exhibit any faked or borrowed credentials of any kind in an effort to purchase or for the purpose of purchasing any beer or wine.
"(d) It shall be unlawful for any person under 21 years of age to loiter in any establishment which sells beer or wine at retail.
"(e) It shall be unlawful for any person under 21 years of age to have any beer or wine in his or her possession."
You ask whether these ordinances are valid in view of State laws which have been enacted to prohibit the sale of beer and wine to minors.
Art. I, Sec. IV, Par. I of the Constitution of Georgia provides in part that "no special law shall be enacted in any case for which provision has been made by an existing generallaw."
Ga. Code Ann. 58-612 provides that:
"[a]ny person who knowingly, by himself or another shall furnish or cause to be furnished or permit any other person in his employ to furnish any minor spirituous or intoxicating or malt liquors witho11t first obtaining written authority from the parent or guardian of said minor shall be guilty of a felony.... "
In 1967 the General Assembly enacted a law which made it a misdemeanor for a minor to purchase malt or intoxicating liquors, or a person to act as agent to purchase malt or intoxicating liquor for a minor, or for a minor to falsely

715
misrepresent his age for the purpose of obtaining any malt or intoxicating liquors. (Ga. Laws 1967, p. 797; Ga. Code Ann. 58-614 to 58-617).
A municipal ordinance which penalizes an act made penal by existing State Ia w covering the same subject matter must yield to the State Law. Jenkins v. Jones, 209 Ga. 758 (1953).
Subsections (b) and (c) of Section 6 of the ordinance deal with the purchase of beer and wine by minors. Ga. Code Ann. 58614 to 58-617 deal with the same subject matter. These subsections must yield to the State law.
Subsection (a) of Section 6 of the ordinance makes it unlawful for any person to sell beer or wine to a minor. This subsection must yield to Ga. Code Ann. 58-612, the State statute covering this same subject matter. Campbell v. Thomasville, 6 Ga. App. 212 (1909).
Since there is no State statute dealing with the subject matters found in Subsections (d) and (e) of Section 6 of the ordinance these Subsections would not be invalid because of conflict with Art. I, Sec. IV, Par. 1 of the Constitution of Georgia.
To summarize it is my opinion that Subsections (a), (b) and (c) of Section 6 of the ordinance are in violation of Art. I, Sec. IV, Par. 1 of the Constitution of Georgia and that Subsections (d) and (e) are not violative of said provision.

OPINION 68-491

December 9, 1968

You ask that this Department advise you of the affect, if any, of Witherspoon v. Illinois, 391 U.S. 510, 88 Sup. Ct. 1770, 20 L.Ed.2d 776 (1968) upon individuals presently under death sentences and awaiting execution in the State of Georgia. A reply to your original request had to be deferred until the Supreme Court of Georgia ruled upon cases which were pending at that time. We have just now had an expression of the Supreme Court of Georgia giving guidance to the proper handling of these cases.

The specific holding of the United States Supreme Court was that "A sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples

716
against its infliction". Witherspoon v. Illinois, supra, p. 784. The
court declared that its decision was fully retroactive. Therefore, cases decided prior to the Witherspoon decision, but in which defendants are currently awaiting execution, are governed by Witherspoon. The Witherspoon court made it clear that convictions returned by juries from which persons conscientiously opposed to capital punishment have been excluded would remain intact. The sole effect of the Witherspoon decision is that executions may not be carried out when the jury returning the conviction and sentence of death has been impanelled by excluding all persons who express general conscientious objection to capital punishment.
In Miller v. The State, 224 Ga. 627 (1968) the Supreme Court of Georgia held, in a Witherspoon-type case, that the appropriate disposition of the case would be to affirm the judgment of conviction and to reverse the sentence of death. In Miller, the court said "The verdict and judgment of conviction for rape are affirmed. The sentence imposed on the verdict is reversed with direction that the trial court impanel a jury selected as in a capital case for submission to it of the sole question: Should the defendant be recommended to mercy and sentenced according to Code Ann. 26-1302 (Ga. Laws 1960, p. 266)?". Miller v. The State, supra, 636. In Witherspoon-type cases, it is clear that the defendant awaiting execution cannot be put to death. It is equally clear that the appropriate procedure to be followed is the impanelling of a second jury in the superior court in which the trial was held and for the State to submit to such jury the question of punishment.
I trust that this opinion sufficiently answers your question, but if I may be of further service to you I shall be pleased to do so. I trust that you understand that the Department of Law could not issue an opinion on this subject until the Supreme Court of Georgia disposed of the cases pending at the time of your request.

OPINION 68-492 (Unofficial)

December 9, 1968

You contest the payment of a portion of the intangible tax on long term notes secured by real estate on certain notes held by Provident Life and Accident Insurance Company.

717
The essence of your contention is that the second note ($150,000) secured by the security deed presented for filing is not a note representing money loaned to Buckhead Plaza Inc. and does not represent any credit extended to Buckhead Plaza Inc. but is a "'premium' note" which is in fact some type of additional interest on the $250,000 loan evidenced by the first note secured by the security deed.
Pertinent parts of the Security Deed read:
"WITNESSETH, that the party of the first part, for and in consideration of the sum of Four Hundred Thousand and 00/100 ($400,000.00)- Dollars in hand paid at and before the sealing and deli very of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the party of the second part, its successors and assigns, the following described property, to-wit: ...
"This conveyance is made under the provisions of the existing Code of the State of Georgia to secure a debt evidenced by two notes of even date herewith, made by the party of the first part, to the order of the party of the second part for the total principal sum of Four Hundred Thousand and No/One Hundredths ($400,000.00)-Dollars with interest from date according to the terms of the note, principal and interest being payable in lawful money of the United States of America, as follows:
"Two promissory notes, both of even date herewith, said notes being known as Promissory Note No. 1 and as Promissory Note No. 2. Promissory Note No. 1 is in the principal amount of Two Hundred Fifty Thousand and NojOne Hundredths ($250,000.00) Dollars, and interest only at the rate shown in said note is payable monthly from October 1, 1968 to and through September 1, 1988. The maturity of said note is September 1, 1988 and it has certain prepayment privileges as therein contained.
"Promissory Note No. 2 is in the principal amount of One Hundred Fifty Thousand and No/One Hundredths ($150,000.00) Dollars. The maturity of said note is September 1, 1988 and it has certain prepayment privileges

718
as therein contained. Said Promissory Note No. 2 does not represent any credit extended to Party of the First Part by Party of the Second Part."
All other information pertaining to the transaction is contained in the letter to Mr. Powers.
In order to determine the validity of your contention it will be necessary to examine certain sections of the Code dealing with long term notes secured by real estate.
Ga. Code Ann. 92-166 requires:
"Every such instrument conveying, encumbering, or creating a lien upon real estate shall set forth in words and figures the correct amount of the note or notes secured by such instrument ..." (Emphasis added.)
Ga. Code Ann. 92-164 requires:
"Every holder of long term notes secured by real estate shall, within 90 days from the date of the instrument executed to secure the same, record such security instrument in the county in which is situated the real estate conveyed or encumbered or upon which a lien is created to secure such note or notes, and shall, prior to presenting such instrument to the Clerk of the Court for recording, present such security instrument to the tax collector or tax commissioner or his deputy of the county in which the real estate is situated who shall determine from the face of the security instrument the date of execution, the maturity date of the note and the principal amount thereof, and shall collect from the holder of such long term note a tax measured by the amount of the debt as evidenced in the security instrument . . ." (Emphasis added.)
Ga. Code Ann. 92-168 further provides:
"Each tax collector or tax commissioner in this State shall make a report to the State Revenue Commissioner, ... of all sums collected under the law ... showing the principal amount of the note, the date of execution, and the maturity date of the note as disclosed from the face of the security instrument to be recorded, . . ."
From the above it would seem abundantly clear that the Georgia law requires that the Security Deed that is presented for

719
filing contain the correct amount of the note or notes to be secured and that the tax commissioner is to determine the measure of tax by the amount of the note or notes as they appear on the face of the security instrument and not to resort to other extraneous information for such computation.
Therefore, as the face of the instrument shows that the Security Deed is to secure a debt for the total principal sum of $400,000, evidenced by two promissory notes, one in the amount of $250,000 and the other in the amount of $150,000, it is my unofficial opinion that the amount of the intangible tax paid to the tax commissioner was correct.

OPINION 68-493 (Unofficial)

December 9, 1968

This is in reply to your letter in which you ask whether an individual employed as a school bus driver by a county board of education may at the same time serve as a member of said board.

The manifest conflict of interest and common law prohibition of an individual holding employment under or transacting business with a public board or body of which he is a member or official is too clear to require extended comment. See e.g. Welsch v. Wilson, 218 Ga. 843, 844-45 (1963); Montgomery v. City of Atlanta, 162 Ga. 534, 546 (1926); Hardy v. Mayor and Council of Gainesville, 121 Ga. 327 (1904); Ga. Code Ann. 32-428; Ops. Atty. Gen. (1960-61) p. 59; 67 C.J.S., Officers, 67, pp. 135-36. Therefore, it is my unofficial opinion that your question must be answered in the negative.

OPINION 68-494 (Unofficial)

December 10, 1968

You have inquired as to whether a blood-grouping test is admissible as evidence in a civil action to determine paternity for the purpose of excluding the defendant named therein as a potential parent of the child whose paternity is at issue. The writer can find no Georgia statute dealing directly with this problem. The leading case in the Court of Appeals, the intermediate-level appellate court, would appear to indicate that the results of blood-

720
grouping tests are admissible for the purpose of excluding an individual's potential paternity of a designated child. Rider v. Rider. 110 Ga. App. 382 (1964). An earlier decision of the Supreme Court of Georgia implied that the highest court in this State might be inclined to entertain an opposite view. "Conceding that it would ever be error to deny such a motion [motion to require a blood-grouping test on behalf of the alleged father for the purpose of excluding parentage], it was not error in the instant case." Lott v. Lott, 215 Ga. 408 (1957). It is, therefore, my unofficial opinion that the results of blood-grouping tests are admissible as evidence in paternity suits for the purpose of excluding alleged fathers. However, it should be borne in mind that this opinion is based upon a decision of our intermediate-level appellate court, which decision, while presently controlling, is subject to reversal by the Supreme Court, which court is on record as expressing doubt as to the admissibility of such test results.
You next inquire whether the trial court in a paternity suit pending in this State may order the mother, child and alleged father to submit to blood tests to determine whether the alleged father and defendant is to be excluded as a potential parent of the child in question. Section 35 of the Georgia Civil Practice Act provides that where the mental or physical condition of a party is in controversy, the court in which the action is pending may order such a party to submit to a physical or mental examination by a physician. Blood-grouping tests are within the statutory concept of physical examination. Rider v. Rider, supra. Normally, this procedural step is utilized in personal-injury actions to provide medical development of the extent, if any, of the complaining party's injuries. In the Georgia cases involving paternity issues the examinations have been invoked by the defendant and alleged father. This being the case, the constitutional question underlying the procedure has never been reached in this State since a complaining party who initiates the action necessarily waives prohibitions against governmental interference with the right to privacy of person by invoking governmental action in an action in which the physical condition of the complaining party is necessarily relevant. There is, however, an underlying constitutional problem where a court invokes its process to require a party defendant to involuntarily submit to a physical examination including the extraction of a blood specimen. The party defendant has not invoked governmental

721
process and has not impliedly waived his right to personal privacy. The Supreme Court of the United States in construing a similar federal provision could discover, surprisingly, no constitutional difficulty in requiring an uninitiating defendant to submit to full physical and mental examinations in any civil action to which he might be named a defendant. Schlagenhauf v. Holder, Judge, 379 U.S. 104 (1964 ). This decision is totally inconsistent with contemporary decisions of the United States Supreme Court and the writer doubts very seriously if the Supreme Court of Georgia would be at all inclined to accept such a diminished concept of constitutionally protected personal privacy in this limited sphere of civil-action discovery. Further, it is the writer's understanding that the only value of blood-grouping tests is to exclude possible parentage. Consequently, they would be inadmissible for the purpose of establishing potential parentage. See Comment 16 Mercer L.R. 306 (1964 ). See also the Uniform Act on Blood Tests to Determine Paternity, an unadopted proposal of the National Conference of Commissioners on Uniform State Laws, 1952. It is, therefore, my unofficial opinion based upon the limited authority available that the predictable outcome of the law now developing on this subject will make blood-grouping tests available solely upon the motion of the defendant and alleged father.
You inquire whether the State of Georgia has promulgated special regulations on blood tests to determine paternity. An examination of our statutes and administrative regulations reveals no such special regulations. You next inquire as to whether a court may order an alleged father to submit to a blood test over objection. As noted above, it is the writer's unofficial opinion that a court of this State would not have such power. It must be reemphasized that blood-grouping tests have probative value only for the purpose of excluding a potential parentage. Where the results of such a test would not have the affect of excluding such parentage, they would not be admissible into evidence in view of the unanimous opinion of serologists that they have no value for the purpose of proving potential parentage. Further, your attention is in vi ted to the fact that the forcible, court-ordered extraction of a blood specimen from a non-consenting, objecting individual is of highly questionable constitutionality.
You further inquire whether it is possible for a competent German court to ask the competent authorities in the State of

722
Georgia to order a blood test in a paternity case if the mother and the illegitimate child are both living in Germany. Since it is the writer's unofficial opinion that the blood-grouping test is a basis for defense which will only be recognized when invoked by the defendant upon his motive, it is difficult to conceive of a situation in which it would be necessary for a German court to make such a request of Georgia authorities. The inability of the State of Georgia to require a non-consenting individual to submit to the extraction of a blood specimen is, in the writer's opinion, a limitation upon the power of the government in favor of the people. Consequently, such a limitation would continue in force even when the desired blood-grouping test is initiated by request from a competent court of foreign jurisdiction. If, however, the defendant should voluntarily consent to the test in question, the testimony of the medical and Ia boratory personnel involved in administering and analyzing such test may be taken by deposition in this State pursuant to the Uniform Foreign Depositions Act. Ga. Laws 1959, p. 311, Ga. Code Ann. 38-2201 to 38-2203.
Your final inquiry is to whether or not a court of this State could order and enforce a blood test of persons whom the alleged father claimed had sexual relations with the mother of the child during the period of possible conception. Section 35 of the Georgia Civil Practice Act which is the sole authority for ordering a physical examination of a person pursuant to a civil suit provides only for the examination of parties to such a suit. Consequently, it is my unofficial opinion, that there is a total absence of authority, even apart from the potential constitutional infirmity, for ordering blood tests of such non-parties.
We trust this answers the inquiries you have made. Should you desire additional background on this area of the Ia w, we would recommend the comment dealing with blood-grouping tests found in Volume XVI of the Mercer Law Review commencing at page 306. This periodical is available at various law libraries and may be obtained from the Walter F. George School of Law, Macon, Georgia. Further background material is contained in the various reports of the National Conference of Commissioners on Uniform State Laws, Headquarters Office, 1155 East Sixtieth Street, Chicago, Illinois.

OPINION 68-495 (Unofficial)

723 December 10, 1968

This letter is in response to your request for my opinion based
on these facts: A present Member of the Board of Regents is sole stockholder of a Realty Corporation. This Realty Corporation is a partner in a Limited Partnership Company which is interested in purchasing certain real property now held by the Regents of the University System of Georgia. Would it violate any Georgia law or public policy for this Limited Partnership Company to purchase this property if and when it should be placed on sale?
OPINION

Such a purchase may only be made from the State Properties Control Commission, acting under authorization of the General Assembly, after the property has been declared surplus and control transferred from the Board of Regents.
DISCUSSION
The Board of Regents, acting on behalf of the Regents "Corporation," is somewhat unique as a department of State government in that it is granted the authority to directly acquire, hold and alienate real property without going through procedures normally required of other State departments. State of Georgia v. Regents, 179 Ga. 210, 218-220 (1934); Ga. Laws 1935, p. 168; 1931, pp. 7, 24 [Ga. Code Ann. 32-141 to 32-143; 32-121(4)]. Consequently, any surplus real property held by the Regents is generally always sold according to the procedures listed in Code Sections 32-141 to 32-143. The proceeds from such a direct sale can thereby "be used for the support of the University System ... or for the payment of any debts ... as the Regents may determine." Ga. Laws 1935, p. 168 (Ga. Code Ann. 32-143).
If, therefore, the sale was made in the usual way, directly from the Regents to the Partnership, it is difficult to see how the Board Member who is a corporate partner in the Parnership would not be acting in violation of Ga. Code Ann. 89-916, which provides:
"No person who is a member of any State board, bureau, commission or other State agency by whatever name called, or of any authority created by law, shall engage in any transaction with any such board, bureau, commission,

724
committee or other State agency, or any such authority, on which such person is a member." Ga. Laws 1956, pp. 60, 62. (See also Ga. Laws 1968, pp. 1369, 1370, for an expression of public policy regarding business transactions between the State and its officers, and Ga. Code 89-9915.)
The fact that the Member was acting in his corporate capacity would not, of course, shield him from the effect of these provisions. Bailey v. State, 84 Ga. App. 839, 843 (1951); 18 C.J.S., Corporations, 714,931, p. 7.
These statutory provisions which prohi bit or discourage business transactions between government agencies and their officers would not be applicable, however, if the Board of Regents should "declare such property surplus" and transfer control of the real property to the State Properties Control Commission, created by Ga. Laws 1964, pp. 146, as amended (Ga. Code Ann. Chap. 91-lA). However, the State Properties Control Commission may only lease real property. To sell such property would require a special resolution or act of the General Assembly, and in this event the proceeds would not go to the Regents but rather to the State Treasury. Georgia Constitution, Art. VII, Sec. III, Par. VIII (Ga. Code Ann. 2-5608). For typical resolutions authorizing sales of real property by the State Properties Control Commission, see editorial note following Ga. Code Ann. 91101; Ga. Laws 1968, pp. 835, 1367; 1966, p. 487; 1965, p. 332.
In this latter event, I can see no legal objection to a purchase of the real property by the Partnership from the State Properties Control Commission.

OPINION 68-496 (Unofficial)

December II, 1968

You inquired as to whether the General Assembly of Georgia can direct the governing authorities of the various counties of Georgia to pay the expenses necessary to operate the offices of the various Solicitors General throughout the State.
Your attention is called to Ga. Laws 1968, pp. 992, 994, which is more commonly known as the Solicitors General Salary Bill, which provides in Section 7 thereof as follows:

725
In the absence of provisions contained within local acts presently governing the subject or in local acts which may be enacted subsequent to this Act, the governing authority may provide all necessary offices, utilities, telephone expense, materials and supplies as may be necessary to equip, maintain and furnish the office of the Solicitors General of that county's Superior Court, and said governing authority may pay all necessary expenses connected with the operation of the Solicitor General's office within such county. The county or counties within a Judicial Circuit may provide such secretarial help as may be needed by the Solicitor General and the actual travel expenses incurred by him in the performance of his official duties, and may provide additional personnel to assist him as may be necessary to ensure the orderly and efficient operation of the Solicitor General's office as may be provided for by the provisions of local acts pertaining thereto.
Thus, it is my unofficial opinion that the obvious intention of the General Assembly in enacting the above Section was to provide that the various counties may provide for the payment of the necessary expenses incurred in the operation of the office of Solicitor General, unless a provision of a current or subsequently enacted local act provides otherwise.
By Art. VII, Sec. IV, Par. I (Ga. Code Ann. 2-5701), the Georgia Constitution of 1945 provides as follows:
The General Assembly may authorize any county to exercise the power of taxation for any public purpose as authorized by general law or by this Constitution, and unless otherwise provided by this Constitution or by law, no levy need state the particular purposes for which the same was made nor shall any taxes collected be allocated for any particular purpose, unless expressly so provided by the General Assembly or this Constitution.
Furthermore, by Art. VII, Sec. IV, Par. II (Ga. Code Ann. 2-5702), the following provision is made, in part:
In addition to such other powers and authority as may be conferred upon any county by this Constitution or by the General Assembly, counties are hereby authorized to exercise the power of taxation for the following purposes which are

726
hereby declared to be public purposes and expend funds raised by the exercise of said powers for said purposes and such other public purposes as may be authorized by the General Assembly: ...
3. Provide for the operation of the courts, . . . .
Thus, the question arises as to whether the provisions of the Solicitors General Salary Bill (Ga. Laws 1968, p. 992) contravene the provisions of the Georgia Constitution in regard to the taxing authority of the counties, and thus the power of the various counties to expend tax revenue.
Specifically, it appears to me that the question which must be answered is as to whether or not the payment of expenses for the operation of the offices of Solicitors General is included in the above-stated Constitutional provisions which authorize the counties to exercise the power of taxation and to expend the funds raised thereby.
Prior to the Constitutional Amendment of 1966 (Ga. Laws 1966, p. 1066, as ratified on November 8, 1966) Art. VII, Sec. IV, consisted of only one paragraph which provided, in part, that:
The General Assembly shall not have the power to delegate to any county the right to levy a tax for any purpose, except: ...
5. To pay the expenses of courts, . . . .
Thus, in 1966, Art. VII, Sec. IV of the Georgia Constitution of 1945 was amended so as to provide in Paragraph I that "The General Assembly may authorize any county to exercise the power of taxation for any public purpose as authorized by general law or by this Constitution, . . . . " Additionally, the 1966 Amendment changed the provision in regards to court expenditures as indicated in the above-stated Paragraph II (Ga. Code Ann. 2-5702) which provides that among the purposes which are declared to be public purposes is the purpose " . . . to provide for the operation of the courts, . . . ." Thus, the 1966 Amendment changed the court expenditure item from "to pay expenses of courts" to "provide for the operation of the courts."
The Constitution of 1945, Art. VI, Sec. XI, Par. II (Ga. Code Ann. 2-4602), provides that the duties of the Solicitor General shall be " . . . to represent the State in all cases in the Superior

727
Courts of his Circuit and in all cases taken up from the superior courts of his circuit to the Supreme Court, and Court of Appeals and to perform such other services as shall be required of him by law." It is my unofficial opinion that certainly the expenses of the office of the Solicitor General are a necessary item "for the operation of the courts" in view of the above-stated duties of the Solicitors General.
Additionally, it is my unofficial opinion that by the Solicitors General Salary Bill the General Assembly of Georgia in empowering the county governing authorities to pay the expenses of the office of the Solicitors General exercised the powers granted it by the Constitution (Art. VI I, Sec. IV, Par. II; Ga. Code Ann. 2-5702) which provides that counties are authorized to " . . . exercise the power of taxation . . . and to expend funds raised by the exercise of said powers ... for such other public purposes as may be authorized by the General Assembly."
Additionally, in Wall v. Morris, 149 Ga. 632 (1919), as reiterated in Mosely v. Garrett, 182 Ga. 810, 817 (1936), the Supreme Court of Georgia recognized the payment of the salary of the Solicitors General as an "expense of court" within the provisions of the Constitution of 1877 (Art. VII, Sec. VI, Par. II; Ga. Code Ann. 2-5402).
Thus, it is my unofficial opinion that if the payment of a salary in addition to that authorized by Art. VI, Sec. XI I I, Par. I of the Constitution of 1877, is within the terms of an "expense of court," then the payment of the expenses to operate the office of such a Solicitor General would be held by the Supreme Court to be within the 1945 Constitutional provision as an expenditure necessary " ... for the operation of the courts, ....", and thus within the provision which authorizes the counties to exercise the power of taxation and thus pay such expenses.

OPINION 68-497 (Unofficial)

December 11, 1968

This responds to your letter in which you state that a local superintendent of schools has not furnished you unspecified information which you are seeking relative to a certain local unit of school administration.

728
Please find enclosed a copy of Ga. Code Ann. 40-270 I to 40-2703, this being the law of general application pertaining to the right of the public to inspect State, county and municipal records.
I must caution you that the duty imposed upon custodians of such records is to allow, subject to the conditions stated in that law, the inspection of existing records. Unless required by statute or order of court, custodians are under no legal obligation to manufacture records or compilations of records which are not customarily kept by the subject unit of government. The willingness of some custodians to "go beyond the call of duty" in providing citizens with data not customarily kept must not be construed as a legal obligation of all custodians to compile records to satisfy the varying needs of the citizenry.

OPINION 68-498 (Unofficial)

December 12, 1968

This is in reply to your letter in which you state:

"The right of way for subject project located on the N. W. leg of the Expressway Brookwood Station was acquired during the year 1950 by Fulton County. Some of the property was condemned in the name of the State, but the parcel in question was condemned in the name of Fulton County and the title still remains in the County. Only 82 feet of right of way was acquired in fee simple, the remainder being an easement as shown on attached plats and as described in the attached petition.
"W. L. Townsend and D. W. Ghegan, developers, acquired the Garden Parks property (Parcel 19) and have planned an elaborate apartment complex. An extensive amount of grading has been done in the process, embankment has been placed on the fill slopes or easement area almost level with the pavement. This, of course, would eliminate the necessity for an easement as usually acquired by our regular slope easement form. However, this filling operation was done without permit from the Highway Department and the drainage has been altered to a design not fully acceptable to the Department.

"Due to apparent encroachment on Highway Department

729
property the loan agency financing the project has required the developers to suspend all operations pending an understanding with the Department. With interest running the developers are obviously quite perturbed."
You then pose the question as to what interest and rights the Highway Department has in this easement area. You also state that the easement area has been graded and filled in, and that the existing drainage has been disturbed.
A study of the condemnation petition, which is on file in the Clerk's office, Fulton Superior Court, Fulton County v. Garden Parks, Inc .. Case No. A-16650, clearly shows that condemnor sought to acquire an easement that is described in paragraph 5 of the petition, which reads as follows:
"Petitioner desires, in addition to the property above described, to condemn and acquire an easement for highway purposes, namely, the easement and right to construct on the land and property described below, which is owned by the same defendants as alleged herein, either slope or fill, as the case may be, and to construct, maintain and keep in repair over and across said property, embankments, supports, fills, slopes, curbs, walls or other necessary appurtenances deemed sufficient by the public authorities for the maintenance, repair, upkeep and approach that may be necessary to maintain said highway and project. Said property with respect to which said easement is sought to be condemned is described as follows:
Following this paragraph was a detailed legal description of the area condemned.
In the Judgment and Decree dated October 12, 1951, the Order states in part:
"It is further ordered and decreed that fee simple title be declared in Fulton County to all of that property described in Paragraph 4 of the Original Petition for the purposes set forth in the original petition, and that an easement be created over that property as described in Paragraph 5 of the original petition for the purposes as set forth and alleged in Paragraph 5 of said Original Petition."
In my judgment, this language creates an existing easement

730
which may be used for the purposes described and which has been ceded to the State Highway Department.
The language contained in Paragraph 5 and the Court's Order is clear and self-explanatory. Therefore, to answer your question as clearly as I can, neither the developers to whom you refer nor any other persons have a right to encroach on this easement. Moreover, the State cannot be divested of its title or interest therein by mere non-user. Furthermore, there is no evidence of an intent to abandon such easement. See Atlanta and West Point Railroad Company v. City of Atlanta, 156 Ga. 251 (1923).
To state it another way, one cannot encroach upon property held by the State for public benefit and obtain title to any part of it by prescription or adverse possession. Waller v. State Highway Department, 218 Ga. 605 (1963); Davidson v. State Highway Department of Georgia, 213 Ga. 599 (1958); State Highway Department v. Strickland, 214 Ga. 467 (1958); Stephens v. State Highway Department, 223 Ga. 713 (1967); and Adams v. Richmond County, 193 Ga. 42, 50 (1941).
Furthermore, I know of no way that the State may be divested of its interest in this land except through proper action of the Georgia General Assembly.
You point out in your letter that the Highway Department actually needs approximately thirty (30) feet of additional right of way in fee simple in order to meet current Bureau of Public Roads' safety requirements and to accommodate a possible future traffic lane. With this situation in mind, a possible exchange of property may be negotiated, but here again such action must have the approval of the Georgia General Assembly.

OPINION 68-499 (Unofficial)

December 12, 1968

This is responsive to your recent letter in which you requested my opinion relative to whether you, as a newly elected member of the General Assembly, may legally continue fulfillment of several contracts for services which the research firm of which you are an officer and stockholder has with the State of Georgia.

In your letter, you related that said firm, The Research Group, Inc., is a data processing and research information firm which currently is under contract with Lake Lanier Islands Development

731
Authority, Metropolitan Atlanta Rapid Transit Authority, Office of the Comptroller General, and Georgia Higher Education Facilities Commission, all of which are agencies or instrumentalities of the State. Under these contracts, the firm provides services only, and there are no goods, supplies, or tangible merchandise of any kind involved. The question which you have propounded to me is whether a member of the General Assembly may, either personally or through a firm in which he has an interest, sell such services to the State.
We currently have three separate acts of the General Assembly in force which are known as "Honesty in Government" laws. Since the last of these laws, enacted in 1964 (Ga. Code Ann., Ch. 26-50A) deals with officers and employees of municipalities and other political subdivisions, the 1956 Act (Ga. Code Ann. 89913 to 89-918) and the 1959 Act (Ga. Code Ann., 26-5003 to 26-5028) are pertinent to officers and employees of the State government.
The relevant section of the 1956 Act is codified as Ga. Code Ann., 89-913. Said Code section makes it unlawful for any fulltime appointive State official or employee to contract to buy from or sell to the State of Georgia any real or personal property, goods or services, or a combination thereof, when such purchase or sale would benefit, or be likely to benefit, such official or employee. Although the proscribed conduct under this Code section does extend to the sale of a "service," it applies only to a full-time appointive State official or employee. Therefore, the provisions of Ga. Code Ann. 89-913 do not apply to a member of the General Assembly.
The relevant section of the 1959 Act is codified as Ga. Code Ann., 26-5004. Said Code section makes it unlawful for an officer, agent, or member of, or anyone interested in the pecuniary profits or contracts of any corporation, joint stock company, or association or of any firm, partnership, sole proprietorship or other business entity, who is an officer, agent or employee of the State of Georgia, and who is entitled to or receives compensation or per diem in his official capacity or for his official duties, to sell any goods, wares or merchandise, personal property or other chattels, to the State of Georgia, or any agency thereof. Although the provisions of this Code section do seem to apply to a member of the General Assembly, the proscribed conduct extends only to the sale

732
of any goods, wares or merchandise, personal property or other chattels.
In view of the foregoing, it appears that neither Ga. Code Ann., 89-913 nor Ga. Code Ann., 26-5004 makes it unlawful for a member of the General Assembly, either personally or through a firm in which he has an interest, to sell a service to the State of Georgia. These being the only two provisions in the Georgia law which appear pertinent to the question as stated, it is concluded that the sale of a service to the State by a member of the General Assembly as aforesaid is not unlawful.
Finally, you have requested my opinion not only as to the legal ramifications of the activity hereinabove described but also as to the propriety of a member of the General Assembly engaging in such activity. This is a matter of personal judgment which directs itself to the individual concerned, and l do not believe that it would be proper for me to express an opinion on that or any other question the answer to which depends on considerations which are not essentially legal in nature. However, I will call your attention to a resolution passed by the General Assembly at its 1968 session (Ga. Laws 1968, pp. 1370-71) which deals with a "Code of Ethics for Government Service." For your information and convenience, a copy of said resolution is enclosed herewith.

OPINION 68-500 (Unofficial)

December 12, 1968

This is in reply to your letter relating to Accident Case No. 654,711. It is the writer's understanding that attorneys representing the releasor's insurer are desirous of proceeding against the releasor upon the theory that the release destroyed the insurer's subrogation rights under the releasor's indemnification policy. Consequently, demand has been made upon your Bureau for copies of the release as filed with the Bureau. It is apparent that the insurer's attorqeys intend to use such copies to support legal proceedings for damages.
The law provides that a person from whom security would otherwise be required in order to stay the suspension of such a person's license, may file with the Bureau a release from liability covering all claims resulting from the motor-vehicle incident. Ga.

733
Code Ann. 92A-606 (4). The release is obviously in lieu of security otherwise required and defined. See Ga. Code Ann. 92A-607 (3). While it is true that the release itself has legal significance apart from the Motor Vehicle Safety Responsibility Act, the copy as filed with your Bureau has reference solely to the operation of the Act. Based on a reading of the entire Act, it is my unofficial opinion that since the release operates insofar as the Act is concerned as security filed, such a release would (all within the provisions of Ga. Code Ann. 92A-612.
Your attention is invited to the language of Ga. Code Ann. 92A-612. The section provid~ that the matter within its provision shall not be referred to in any way, nor be evidence of the negligence or due care of any party, at the trial of any action at law to recover damages. Such statutory schemes are in derogation of the common law and are strictly construed. See annotation in 165 A.L.R. 1306 as supplemented. Further, subsequent to the enactment of the statute unofficially codified as Ga. Code Ann. 92A-612 the General Assembly enacted an open-records law now unofficially codified as Ga. Code Ann. 40-270 I to 40-2703. Based upon the express language of 92A612 and the legislative policy contained in 40-2701 to 40-2703, it is the writer's unofficial opinion that the documents in question are subject to public examination and copying.
In order to protect the statutory prohibition contained in 92A-612, it is recommended that the following notation be stamped upon, or made a part of the certification of such documents:
"Before making any reference to this document at the trial of any action at law to recover damages, the effect of Ga. L. 195), p. 574 should be considered. Before admitting this document as evidence of the negligence or due care of any party involved in the incident to which it has reference, the effect of Ga. L. 1951, p. 574 should be considered."

OPINION 68-501 (Unofficial)

December 13, 1968

This is in response to your letter wherein you request an opinion as to whether or not in the event of lack of assets in the probate

734
of the estate of a Georgia domiciliary in which an inter vivos, revocable, out-of-state trust set up by the testator is involved the State would be entitled under Georgia law to proceed against the out-of-state trust for the payment of the Georgia Estate Tax.
Ga. Code Ann. 92-340 I states that it is the duty of the legal representative of a deceased resident to file and pay a Georgia estate tax equal to the credit granted to the taxpayer by the federal government under 26 U .S.C.A. 20 II. Ga. Code Ann. 92-340 I does not spell out any alternate persons or transferees who may be liable. The law which col1trols the ultimate placing of the federal estate tax burden is the law of the state in which the estate is being administered (U.S. v. Goodson, 253 F.2d 900 (8th Cir., 1958)). Ga. Code Ann. 92-3404 provides that if the legal representative fails to pay the amount of the state assessment within six months after notice the Revenue Commissioner shall issue execution for the amount of such tax against said estate which execution shall be enforced by levy and sale. An inter vivos, revocable trust is included in the gross estate of the decedent (26 U .S.C.A. 2038) and as such would be subject to levy and sale.
Even though the State of Georgia does not seem to have an apportionment statute the courts in a proper action by an executor against a trustee may determine the matter of how the estate taxes should be borne or charged (Regents of the University v. Trust Co. of Ga., 194 Ga. 255 (1942)).
OPINION 68-502
December 16, 1968
You ask whether or not the State Board of Corrections should consider as a detainer a request from a county works camp warden for the return of a prisoner under the jurisdiction of the State Board of Corrections when there is a pending sentence to be served in the county works camp rather than a pending indictment to be tried.
Ga. Laws 1968, p. 1110, commonly known as the Georgia Detainer Act, is explicit in defining a detainer. Section 33.9 of the Act defines a detainer, in part, as "a written instrument executed by the prosecuting officer of a court and filed with the State Board of Corrections requesting that the State Board of Corrections retain custody of an inmate pending delivery of the

735
inmate to the proper authorities to stand trial upon a pending indictment . . . and to which is attached a copy of the indictment, accusation or information which constitutes the basis of the request. The request shall contain a statement that the prosecuting officer desires and intends to bring the inmate to trial upon the pending indictment, accusation or information." Ga. Laws 1968, pp. 1110,1111. It .is my opinion that a request for the detention and return of an inmate in the Georgia Prison System to a county for the service of a sentence already imposed and to be served in a county works camp is not a detainer within the meaning of Ga. Laws 1968, p. 1110. Upon a reading of the entire Act (Ga. Laws 1968, p. 1110) it is my opinion that the same relates solely to requests for the detention of an inmate pending delivery for trial upon pending charges. That the Act relates to situations in which charges are pending, does not preclude the Board of Corrections from notifying the officials of a county that an inmate will be released on a specified date and that they may pick the inmate up at the appropriate institution on the date of the inmate's release. A request from a county official, under such circumstances, could not, however, be treated as a detainer by the Board of Corrections.

OPINION 68-503 (Unofficial)

December 16, 1968

By letter you inquire as to the authority of a municipal police officer to pursue a vehide beyond the corporate limits of his municipality for a traffic violation committed within the corporate limits in the officer's presence. Your request is limited to those traffic violations that constitute State offenses. Please see Shirley v. City of College Park, 102 Ga. App. 10 (1960). It is my unofficial opinion that this case clearly establishes the authority of municipal police officers to pursue a suspect out of and beyond the corporate limits of their normal policing authority where the person pursued has committed an offense in the presence of the municipal officer, which offense is made punishable by the laws of this State. In such a case, the arrest may be made outside the territorial limits of the municipality involved.

736

OPINION 68-504 (Unofficial)

December 16, 1968

In your letter you inquired as to the procedure for the appointment of a Constable in a district where no one was elected during the recent elections. Additionally, you inquired as to whether you had the authority to appoint a Constable for a full four-year term.

In reponse to your first inquiry, your attention is called to Ga. Code Ann. 24-80 I, which provides as follows:

There shall be two constables in each militia district of the several counties elected by the people of each district who shall hold their offices for four years unless sooner removed.

Furthermore, in regard to vacancies in the Office of Constable, your attention is called to Ga. Code Ann. 24-806 which provides as follows:

Vacancies are filled by appointment of the justice of the peace of the district, in the following contingencies: (Act 1811, Cobb, 201.)
I. When, from any cause, there is a failure to elect, qualify, and give bond at the regular time.
2. When there is a death, resignation, or removal of constable....

Also, your attention is called to the following Code sections in regard to the appointment of a Constable by a Justice of the Peace:

If there are two justices of the peace, and they cannot agree upon an appointment, the one who has served longer as such, continuously and immediately preceding, shall appoint; if there are two constables to appoint, each justice shall appoint one. (Ga. Code Ann. 24-807.)

If there is only one justice of the peace, he may make the appointment; but it shall be in the discretion of the justices, whether one or two, to appoint the second constable or not, if there is one in office, or one or two if there is none in office. (Ga. Code Ann. 24-808.)

In situations where the Justices of the Peace fail to appoint a

737
Constable, the following provision is made in Ga. Code Ann. 24-809:
If the justices of the peace of any district fail or refuse to have at least one constable in their district for as long as 30 days from the time such vacancy occurs, the qrdinary of the county shall make an appointment.
However, in regard to the filling of an office where there is a failure to elect someone to that office, your attention is called to Ga. Code Ann. 34-1515 which provides as follows:
Whenever any primary or ~lection 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 ~andidacy, shall thereupon call a special primary or election to fill such position.
Therefore, in view of the direct conflict between the above Ga. Code Ann. 24-806 to 24-809, and Ga. Code Ann. 34-1515, it is my unofficial opini9n that the General Repealer Clause of the Georgia Election Code (Ga. Code Ann. 34-2005) which provides that "all other laws and parts of law in conflict with this Code are hereby repealed," causes Ga. Code Ann. 34-1515 to control since it is the latest expression of the General Assembly of Georgia.
It is, thus, also my unofficial opinion that a vacancy in the office of Constable caused by the " . . . failure to elect, qualify, and give bond at the regular time" (Ga. Code Ann. 24-806) would have to be filled by a special election called by the Ordinary rather than by an appointment by either a Justice of the Peace or Ordinary. See: Ga. Code Ann. 34-100 I. The unofficial opinions herein are expressed notwithstanding any inferences to the contrary stated in Opinion 68-486.

OPINION 68-505

December 16, 1968

This is in reply to your request for an opinion concerning the authority that the Georgia Public Service Commission has with

738
respect to the $25.00 registration fee required of motor carriers registering vehicles operated under their authority. You asked specifically whether or not the Georgia Public Service Commission can waive such fees under a reciprocal arrangement with another state where the out-state carrier is operating a vehicle registered in Georgia under a "spot lease" from the Georgi! owner.
Ga. Code Ann. 68-518 provides that every motor carrier shall register all motor vehicles operated under its certificate and require the payment "of a fee of $25.00 for each vehicle. . ." Ga. Code Ann. 68-525 requires that "Motor carriers engaged solely in interstate commerce. . . shall pay annually the registration fee prescribed in section 68-518 for each motor vehicle operated by them over the highways of this State. . . ." See also Ga. Code Ann. 68-623 and 68-633(b). The Georgia Public Service Commission is required, based on the above Code sections, to collect a $25.00 registration fee for each of the vehicles referred to in those sections and does not have any authority to excuse the payment of those fees except such authority as they have under Ga. Code Ann. 68-1003 dealing with recriprocal arrangements.
The authority of the Public Service Commission as to reciprocal arrangements permits the granting of an exemption with respect to the $25.00 registration fee. However, the exemption or the authority to grant the exemption is limited to vehicles licensed in such reciprocating states. This Code section states this authority as follows:
"The Public Service Commission is authorized to negotiate with the proper authorities of other states and consummate reciprocal agreements, whereby residents of such States operating common or contract motor carriers licensed in their respective States may be granted privilege and exemption of the operation of said motor vehicles in this State. . . ."
I understand that an out-of-state carrier operating motor vehicles under the benefit of a reciprocal agreement does not have to pay the $25.00 registration fee but is issued a "cab card" for identification purposes and is charged a $1.00 fee for each such card.
You request my opinion concerning specific exemptions as to these fees as follows:

739
"I. Where a vehicle bearing Georgia revenue license plates and a $25.00 G PSC tag is leased to another carrier for movement of a shipment in interstate commerce to, from, or through Georgia, does the Georgia law require the payment of an additional fee for registration of that vehicle in the name of the lessee?
"2. Where a vehicle bearing Georgia revenue license plates and a $25.00 GS PC tag is leased to another carrier for movement of a shipment in intrastate commerce or interstate commerce between points in Georgia, does the Georgia law require the payment of an additional fee for registration of that vehicle in the name of the lessee?
"3. If the answer to question No. I or 2 is 'yes,' is the amount of additional fee required to be $25.00 or could it be a lesser amount?"
A Georgia motor carrier is required to register each vehicle used by him under his authority and pay the $25.00 registration fee. If that vehicle is used also by another carrier, then that other carrier must also register the vehicle and pay a $25.00 registration fee. The answer to question No. I above then must be in the affirmative although I do not construe the payment of the $25.00 fee by the second carrier as an additional fee as the law requires each carrier to register each vehicle used by them.
The answer to your second question must also be in the affirmative for the same reasons given in answer to question No. I above. The registration fee required of each vehicle is set out in the code as $25.00 and the Georgia Public Service Commission has no authority to reduce that fee. The Commission's authority to enter into reciprocal agreements authorizes them to waive the $25.00 fee as to motor vehicles registered by an out-of-state carrier from a state with which such a reciprocal arrangement provided the vehicle registered by such carrier is licensed in the carrier's respective state.

0 PINI0 N 68-506 (Unofficial)

December 16, 1968

You have asked whether the Department of Industry and Trade, which advertises Georgia's industrial and tourist

740
attractions throughout the country, could participate in "tie-in" advertising. The materials submitted with your request indicate that the proposal, as presented by an advertising agency, would involve a series of ads focusing on Georgia in general and the products or services of certain Georgia companies in particular. The cost of each ad would be shared by the Department and the featured enterprise. Th~ program would be open only to those companies receiving an "invitation to participate" from the Department.
Under the Fourteenth Amendment of the United States Constitution, a state may not deny equal protection of the laws to any person within its jurisdiction. Watkins v. Oak/awn Jockey Club, 86 F. Supp. 1006 (D.C. Ark., 1949), aff'd, 183 F. 2d 440 (8th Cir., 1950). This constitutional guaranty requires that all persons be treated alike under like circumstances and conditions. Dorsey v. Atlanta, 216 Ga. 778 (1961). A corporation is considered a person and is, therefore, within the protected class. Grosjean v. American Press Co., 297 U.S. 233 (1936). The prohibition of the Fourteenth Amendment applies to state action of every kind, by every agency or instrumentality, including not only legislative, but executive or administrative action, at least insofar as intentional and arbitrary discrimination is concerned. 16A C.J.S., Constitutional Law, 505 (1956).
In my opinion this advertising program would occasion discrimination, both intentional and arbitrary. The fact that it would be open only to those receiving an "invitation to participate" is ample evidence of intent. Nor can there be any reasonable basis for sharing advertising space with certain businesses while excluding from participation others in the same class.
Even if the invitational feature of this program were eliminated, I am unaware of any devisable category of participants which would at once be reasonable and yet self-limiting enough to fit the Department's advertising budget. Certainly the materials enclosed with your request suggest none.
For example, one of the proposals made by the agency is for a series of ads "featuring Georgia products that are 'firsts' in industry." Another is for a series of ads promoting those Georgia companies "supplying the nation's railroad industry and major shippers."

741
These two categories alone would yield thousands of advertisers who would be entitled to participate. The mere fact that the Department could not afford to cooperate with every eligible advertiser would not redeem the program. The constitutional test of equal protection is not satisfied by considerations of financial expediency alone. Smith v. Reynolds, 277 F. Supp. 65 (1967).
A similar result would obtain under Art. I, Sec. I, Par. II of the Georgia Constitution (Ga. Code Ann. 2-102) which declares that protection to person and property shall be "impartial and complete" since this is the equivalent of a declaration that no per"Dn shall be denied equal protection of the laws, Georgia Railroad Co. v. Wright, 125 Ga. 589 (1906).
Therefore, it is my unofficial opinion that your question should be answered in the negative.
OPINION 68-507 December 18, 1968
In your letter you ask two questions which are as follows:
"(1) Do members of the public have the inherent right to inspect, photograph, or otherwise reproduce the minutes of the State Highway Board of Georgia or the State Highway Department of Georgia in part or in their entirety, from the creation of the State Highway Board in 1919 through and including the last minutes adopted in regular session?
"(2) If members of the public have this right, can the State High way Board of Georgia and the State High way Department of Georgia regulate the time and the method of inspecting or reproducing the minutes? Also, can the State Highway Department require the members of the public to pay their prorata of the cost of personnel assigned to supervise the inspection and reproducing or copying of the minutes?"
May I call your attention to the provisions of Ga. Code Ann. Ch. 40-27. Ga. Code Ann. 40-2701 of this Chapter provides as follows:
"40-2701. Right of public to inspect records.-All State, county and municipal records, except those, which by order of a court of this State or by law, are prohibited from being

742
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. 40-2702 provides as follows:
"40-2702. Supervision of persons photographing records; charge for services of deputy.- In all cases where a member of the public interested has a right to inspect or take extracts or make copies from any public records, instruments or documents, any such person shall hereafter have the right of access to said records, documents or instruments for the purpose of making photographs of the same while in the possession, custody and control of the lawful custodian thereof, or his authorized deputy. Such work shall be done under the supervision ,of the lawful custodian of the said records, who shall have the right to adopt and enforce reasonable rules governing the said work. Said work shall be done in the room where the said records, documents or instruments are by law kept. While the said work hereinbefore mentioned is in progress, the lawful custodian of said records may charge the person desiring to make the said photographs for the services of a deputy of the lawful custodian of said records, documents or instruments to super vise the same, or for the services of the said lawful custodian of the same in so doing at a rate of compensation to be agreed upon by the person desiring to make the said photographs and the custodian of the said records, documents or instruments."
Ga. Code Ann. 40-2703 excepts from the provisions of the Chapter records required by the Federal Government to be kept confidential or medical records and similar files, the disclosure of which would be an invasion of personal privacy.
I have found one case which I believe to be controlling on this problem. In the case of State, ex ref Spencer v. Freedy, State Fire Marshall, 223 N.W. 861, the Court was construing a statute of the State of Wisconsin which requires the State Fire Marshall to keep in his office a record of all fires occuring in the State together with other statistics concerning the same, and further provides that "such statistics shall be at all times open to the public inspection." In this case, one of the parties was attempting

743
to gain the right to inspect reports made to the State Fire Marshall. The Court determined that reports to the Fire Marshall were not subject to the law but it was the Fire Marshall's recordation provided for the public which was subject to public inspection. In so holding, the Court concluded that such interpretation was consistent with the legislative purpose of the Act and concluded that the public had the right to inspect those materials required to be recorded for the public's benefit.
In answer to your first question, I am unable to find any law which requires the State Highway Board of Georgia to record minutes of its proceedings. However, I am of the opinion that such minutes, when kept, would be kept for the benefit of the public and would be of such a character and nature as to be classified as quasi-official, and necessarily would be subject to the provisions of the "open records law."
Thus, it would be my opinion that a member of the public has the right to inspect and to copy the minutes of the State Highway Board, and this right would extend to any minutes available, provided the minutes have been delivered to the lawful custodian or his authorized deputy for retention.
In answer to your second question, the provisions of Ga. Code Ann. 40-2701 and 40-2702, hereinbefore quoted, seem explicit. It is provided that the time and place must be reasonable and it would be my opinion that within limits you may determine what is a reasonable time and place. Further, it would be my opinion that within the limits of reasonableness you may determine what charges can be made to a member of the public desiring to photograph the records if your charges relate to the services of the deputy or custodian of the records in supervising the copying.

OPINION 68-508 (Unofficial)

December 18, 1968

In your letter you inquired as to whether you have the authority to appoint a Justice of the Peace for Militia Districts which do not have a Justice of the Peace.
Your attention is first called to Ga. Code Ann. 24-401 which provides as follows:

744
There shall be one justice of the peace in each militia district of the several counties, elected by the people of such district in the manner hereinafter prescribed. He shall continue in office for four years, unless sooner removed.
Additionally, your attention is called to Ga. Code Ann. 24406 which provides as follows in regard to the filling of a vacancy in the office of Justice of the Peace:
When a vacancy shall occur in the office of justice of the peace the ordinary of the cqunty shall issue the call for an election to fill such vacancy in the district where the vacancy occurs. Such election shall be held within 30 days from the date the vacancy occurs and the ordinary shall give notice of the date and purpose of such election by advertising the same in the official organ of the county at least 10 days prior to the date thereof. He shall also post a notice at the courthouse and at three of the most public places in the district. In the event there is a notary public ex-officio justice of the peace in the district where the vacancy occurs, he along with two freeholders shall hold the election in the same manner in which a regular election for justice of the peace is held and shall duly certify the election to the Governor who shall commission the person elected for the unexpired term. (Act 1819, Cobb, 207. Acts 1962, pp. 522, 523.)
Enclosed please find a copy of Opinion 66-108, which states that because of the variances in the provisions of the a hove section and the Georgia Election Code, the Election Code controls since it is the latest expression of the General Assembly.
Finally, your attention is called to Ga. Code Ann. 24-408 which provides as follows for the filling of a vacancy in a Militia District without a Justice of the Peace when an e'lection is ordered, but none is bona fide held:
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.
However, in regard to the filling of an office where there is a

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failure to elect someone to that office, your attention is called to Ga. Code Ann. 34-1515 which provides as follows:
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.
Therefore, in view of the direct conflict between the above Ga. Code Ann. 24-408 and 34-1515, it is my unofficial opinion that the General Repealer Clause of the Georgia Election Code (Ga. Code Ann. 34-2005) which provides that "all other laws and parts of laws in conflict with this Code are hereby repealed," causes Ga. Code Ann. 34-1515 of the Georgia Election Code to control since it is the latest expression of the General Assembly of Georgia.
It is, thus, also my unofficial opinion that with respect to a vacancy in the office of Justice of the Peace when " ... an election has been legally ordered to supply the vacancy, and none is bona fide held at the time and place designated. . . " (Ga. Code Ann. 24-408), that such a vacancy would have to be filled by another special election called by the Ordinary rather than by an appointment by the Ordinary. See: Georgia Election Code, Ga. Code Ann. 34 -100 1.
In answer to several anticipated questions concerning the holding of an election to fill the office of Justice of the Peace, enclosed please find copies of the following unofficial opinions of the Attorney General: 67-125 and 67-435.

OPINION 68-509 (Unofficial)

December 19, 1968

This is in response to your request for an opinion relative to whether a person may occupy the office of County Surveyor if he is not registered as a surveyor with the State Board of Registration for Professional Engineers and Land Surveyors.

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Section I of Ga. Laws 1966, pp. 225, 226 amended Ga. Code Ann. 23-1101 so as to provide that:
"County surveyors are elected, commissioned, qualified, and removed as clerks of the superior courts are, and hold their offices for four years. Provided, however, that every person holding the post of county surveyor shall be a qualified surveyor, licensed by the State Board of Registration for Professional Engineers and Land Surveyors, and said person shall have successfully passed the examination given by the board as a requisite to the granting of a license as a land surveyor."
Section 4 of Ga. Laws 1966, pp. 225, 227, provided that:
"The provisions of this Act shall become effective immediately, provided, however, that any person currently holding the position of county surveyor, either elected or appointed, shall not be required to meet the qualifications as enumerated under this Act so long as said person remains in position of County Surveyor whether reappointed or reelected to this position."
Section 5 of Ga. Laws 1966, pp. 225, 227, provided that:
"No provision of this Act shall apply to any county having a population of less than 17,000 inhabitants, according to the 1960 census or any future census."
In view of the foregoing, it is my unofficial opinion that in any county having a population of 17,000 or more inhabitants, the person occupying the office of County Surveyor must be registered as a surveyor with the State Board of Registration for Professional Engineers and Land Surveyors.
It is my further unofficial opinion that any person who held the position of County Survey"or on March 7, 1966 (the date Ga. Laws 1966, p. 225 et seq,, was approved) could serve as County Surveyor regardless of whether he was licensed as a surveyor by the State Board of Registration for Professional Engineers and Land Surveyors so long as his service in said office was continuous. However, a person not occupying the position of County Surveyor on March 7, 1966, could not be elected or appointed to said office in a county of 17,000 or more inhabitants unless he was registered as a surveyor with the State Board of Registration for Professional Engineers and Land Surveyors.

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OPINION 68-510 (Unofficial)

December 20, 1968

By letter you inquire as to whether a person charged in a municipal court in the State of Georgia with a violation of a municipal ordinance is entitled, as a matter of right, to a trial by jury. The decisional law of this State is that one accused of violating an ordinance of a municipality is not entitled to a trial by jury when arraigned in a municipal court. Loeb v. Jennings, 133 Ga. 796 (1910); Duren v. City of Thomasville, 125 Ga. 1 (1906); Little v. Town of Ft. Valley, 123 Ga. 503 (1905); Littlejohn v. Stells, 123 Ga. 427 (1905). It is therefore the writer's unofficial opinion that your question must be answered in the negative.

Your attention is invited to the fact that the judicial structure in Georgia embraces numerous "city courts" which are not courts of the municipalities in which they are located. Rather, they are State courts, having original jurisdiction, generally in all civil cases except such as is vested exclusively in the superior courts, and for the trial of State misdemeanors. Territorially, the jurisdiction of courts denominated "city courts" in Georgia usually embraces the counties in which they are located. Thus, the City Court of Savannah is a State court of original, limited jurisdiction covering, territorially, all of Chatham County. This is noted as there is a tendency to assume from the names of such courts that they are courts of the municipalities whose names they bear. Cases dealing with the right to a trial by jury in a city court relate to State courts and State offenses. The writer would emphasize this distinction as the nomenclature has apparently confused the editors responsible for preparing certain digests, and cases relating to the trial by jury in the city courts are digested under the municipal-court sections.

OPINION 68-511 (Unofficial)

December 20, 1968

Although it has long been the practice of private landowners to dredge sand and silt from State-owned waterbottoms under permit from the Corps of Engineers, such dredging, with few exceptions, has constituted unlawful appropriation of State property by the

748
landowner. A Federal permit in no way assures the permitee that the dredging operation will be allowed by the State.
Because of a general misunderstanding on the part of dredging operators regarding the force and effect of such permits, this writer has requested that the District Engineer, U.S. Army Corps of Engineers, at Savannah, secure approval from the State Law Department before issuance of any dredging permit. The Corps has been most cooperative in refusing to act on permit applications until clearance is given by the State.
Before consideration can be given to such proposed severance and removal of sand and associated minerals from State property, application must be made by prospective dredge-and-fill operators to the State Mineral Leasing Commission for a short term mineral lease in accordance with Ga. Laws 1945, pp. 352-356, as amended (Ga. Code Ann. 91-121).

OPINION 68-512

December 20, 1968

The State Employee Health Insurance Plan has executed a contract of insurance with a private insurance company to provide the benefits authorized under the Plan. Ga. Laws 1961, pp. 14748; Ga. Code Ann. 89-1203, et seq. You have requested my opinion on whether the Insurance Commissioner has the authority to require that a coordination of benefits endorsement to the Employee Group Policy covering employees of the State of Georgia be filed with and approved by the Insurance Commissioner prior to its issuance to the master policy holder, the State Employee Health Insurance Plan. Apparently, a coordination of benefits endorsement has been approved by the administrator of the Plan and the endorsement has been attached to the master policy although it has never been submitted to the Insurance Commissioner for approval. The endorsement is not one of the exclusions set out in Section 4 of the Act. Ga. Laws 1961, pp. 147-48 as amended; Ga. Code Ann. 89-1204.
As I understand the situation from discussions with various State personnel, Medicare has two coverages, one which is available without charge to anyone eligible under the law and the second which must be applied for and for which there is a charge to the insured person. Under the Insurance Code it has been the

749
policy of your office to disapprove any endorsement which attempts to coordinate benefits of persons covered with benefits available under the second coverage of Medicare where such person, although legally eligible to do so, has never applied for or paid for this coverage and therefore has no right to file a claim for such benefits. Coordination of benefits in this instance means, roughly, that the private insurance company may deduct from its payment to the insured such amount as would have been paid to the insured under Medicare if the insured had applied for the second coverage. You believe that coordination of benefits, if allowed at all, should be limited to coordination with benefits to which the insured is presently entitled to be paid.
The endorsement which has been attached to the master policy of the Plan without your approval provides for coordination of benefits with Medicare regardless of whether the insured has actually applied for coverage under the second section of Medicare, so long as the insured was legally eligible to do so.
The above discussion is offered by way of explanation in an attempt to characterize the present problem as fully as possible. In my view, the issue is whether, in this case, the Insurance Commissioner has the authority to require that an endorsement to an insurance policy covering State employees under a health insurance plan be first filed with and approved by him prior to its issuance for delivery to a State agency.
The Georgia Insurance Code provides:
"No basic insurance policy or annuity contract form, or application form where written application is required and is to be made a part of the policy or contract, or printed rider or endorsement form or form of renewal certificate, shall be delivered or issued for delivery in this State, unless the form has been filed with and approved by the Commissioner. . . . " Ga. Code Ann. 56-2410(1 ).
The Insurance Code further provides that no company shall write insurance or act as an insurer in Georgia without complying with the Georgia Insurance Code. Ga. Code Ann. 56-103, 56104, 56-109. I find nothing further in the Insurance Code which indicates that the above provisions do not control our present situation.
The Act setting up the State Employee Health Insurance Plan

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nowhere provides that the Plan is exempt from the provisions of the Georgia Insurance Code. Ga. Laws 1961, p. 147 as amended; Ga. Code Ann. Ch. 89-12. Indeed, the Act provides that in the event it is decided to contract for insurance or reinsurance with a private corporation, the corporation must be licensed under the terms of the Insurance Code to transact accident and health insurance business in Georgia. Id. pp. 147, 149; Ga. Code Ann. 89-1206.
It is persuasive to note that when the General Assembly created the State Employees Assurance Department, a State agency somewhat similar to the Plan, it specifically provided that the Department was not required to comply with any provisions of the Georgia Insurance Code. Ga. Laws 1963, pp. 521, 523; Ga. Code Ann. 89-1410. I therefore assume that if the General Assembly had wished to exempt the Plan from the provisions of the Insurance Code, it would have done so by specific legislation. I have found no authority in Georgia, either statutory or case law, which indicates any intent to so exempt the Plan.
State officers or agencies cannot alter or suspend the operation of State law, absent some express statutory authorization. Neither are they empowered to authorize the continuation of a business being operated in violation of State law. Eastman Oil Mills v. State, 130 Miss. 63, 93 So. 484 (1922); see also Nadlin v. Starick, 24 Ohio App. 2d 272, 194 N. E. 2d 81 (1963). Therefore, the fact that the contract of insurance was made with a State agency and approved by it coul9 in no way excuse compliance with the Insurance Code.
For the foregoing reasons, it is my official opinion that, in this case, the Insurance Commissioner has the authority to require that an endorsement to an insurance policy covering State employees under a health insurance plan be first filed with him and approved by him prior to its issuance for delivery to a State agency and your request is answered in the affirmative.
Since my answer to your first request is in the affirmative, you next wish my opinion as to the contractual effectiveness of the coordination of benefits endorsement.
The Georgia Insurance Code provides:
"Any insurance policy, rider, or endorsement hereafter issued and otherwise valid which contains any condition or provision not in compliance with the requirements of this

751
Title, shall not be thereby rendered invalid but shall be construed and applied in accordance with such conditions and provisions as would have applied had such policy, rider, or endorsement been in full compliance with this Title. . . ."Ga. Code Ann. 56-2418.
Since you state that you would disapprove such a coordination of benefits endorsement as was attached to the master policy, in the event such an endorsement was filed with you, I would construe the above Insurance Code provision to allow the policy to continue as a valid policy, minus the offending endorsement.
In addition, Georgia law in general provides that illegal conditions in contracts are void and binding upon no one. Ga. Code Ann. 20-111. The Georgia Supreme Court has decided, based on the above provision, that an insurance policy provision in violation of or prohibited by a statute was automatically rendered null and void while the remaining contract of insurance continued as valid. Curtis v. Girard Fire and Marine Insurance Company, 190 Ga. 854 (1940); see also Commercial Union Assurance Company v. Preston, 115 Tex. 351, 282 S. W. 563, 45 ALR 1016 (1926), in which the Texas Supreme Court decided that under the authority of a Texas statute requiring approval of insurance forms by the Insurance Commission, an endorsement to a policy not first approved by the Commission was void.
Although the Georgia statutes have not, to my knowledge, been construed by the Georgia courts in a situation similar to the present one, it is my opinion that the courts would construe the master policy as valid, but would give no contractual effectiveness to the offending endorsement.

OPINION 68-513 (Unofficial)

December 26, 1968

By letter you inquire as to the right of a convicted felony defendant to the transcript of the evidence and charge of the court without paying for them. Ga. Code Ann. 27-2401 (1933) requires the court reporter in all felony trials to transcribe the testimony and proceedings to be entered on the minutes of the trial court. See Williams v. Cooley, 127 Ga. 21 (1906). Section 24-3104 of the Code of Georgia (1933), as amended, provides for

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the payment from public funds of the court reporter for his services in transcribing the required testimony and proceedings. These older Code sections must be read together with Ga. Laws 1965, pp. 18, 24; Ga. Code Ann. 6-805. This later enactment modifies section 27-2401 to the extent that in place of entering the transcript of the testimony upon the minutes of the court, the reporter instead files the original and one copy with the clerk of the trial court.
It is my unofficial opinion based upon a reading of all three sections that in a felony trial resulting in conviction the court reporter is under a duty to transcribe the testimony and proceedings, except for the argument of counsel, and to file the original and one copy with the clerk of the convicting trial court. It is my further unofficial opinion that the compensation of the court reporter for the filing of this original and one copy is either a charge against the public funds or included within the reporter's salary, as the individual case may be.
The Griffin case and the subsequent decisions along this line appear to deal with the dtuation where the defendant is required to bear the cost of the transcript preparation necessary to perfect an appeal. In Georgia, the transcript required for an appeal is the original which the reporter is required by law to file with the clerk of the convicting court. Consequently, it is my unofficial opinion that the Georgia procedure cannot operate to deny an indigent his right to appeal simply because he is unable to procure a transcript of the proceedings against him for filing with the appellate court. Therefore, the federal constitutional decisions would seem to endorse this State's statutory provisions relative to transcripts on appeal. However, nothing in either the statutes or the cases are viewed as conferring any right upon a convicted felony defendant to a personal copy of the transcript of the evidence and proceedings over and beyond the original and one copy which the law directs to be filed with the clerk.
OPINION 68-514 (Unofficial)
December 27, 1968
By letter you inquire as to the existence of any State law regulating the use of a distant microphone enhanced by parabolic

753
reflector. You indicate that such directionally sensttlve microphones might be useful in certain forms of public gatherings, particularly those involving audience responses directed to a speaker.
The statutes define eavesdropping as the intentional overhearing in a clandestine manner of the private conversation of another, which conversation originates in a private place. It is therefore my unofficial opinion that the open use of such equipment in a public gathering for the purpose of enhancing the "pick-up" of conversations deliberately a portion of the public proceedings would not constitute eavesdropping. Ga. Code Ann. 26-2002 (a).
The Ia w prohibits the possession of any "eavesdropping device" by persons other than law-enforcement officers. Ga. Code Ann. 26-2004. The Ia w defines an eavesdropping device as "any instrument or apparatus which by virtue of its size, design and method of operation has no normal or customary function or purpose other than to permit the user thereof to secretly intercept, transmit, listen to or record private conversations of others." Ga. Code Ann. 26-2004. In every case, the ultimate criteria is whether any instrument has a normal function separate and apart from the prohibited act of eavesdropping. The legality of the possession of a reflector-enhanced microphone system would appear to depend entirely upon whether or not such systems have a normal utility value not dependent upon their utilization for the prohibited purpose of clandestinely overhearing private conversation. As this is in every case, and for every particular instrument, a question of fact, this office is not equipped to render an opinion as to the legality of any particular instrument. If the equipment to which your letter has reference is normally utilized in the manner indicated or for other legitimate purposes, then it is my unofficial opinion that it would not constitute an eavesdropping device within the definition of the statute.

OPINION 68-515 (Unofficial)

December 27, 1968

By letter you inquire as to the computation of sentences, all or part of which are served on probation. Your letter is not clear as to the exact nature of your question; however, the computation of

754
a probated sentence is sufficiently simple to permit a general summary.
The authority of a court to pro bate a sentence imposed by it is based on Ga. Code Ann. 27-2502. The trial court imposes a determinant sentence for a specific number of years. Normally, such sentences are served within the confines of the State correctional system. When such a sentence is probated the term is served, as directed by the court, under the supervision of probation officials. The court imposing the sentence and ordering it probated has the authority to revoke the probation for violation of the conditions upon which it was granted. In such a case, the convicted person is committed to the custody of the State correctional system for the remainder of the term, time served on probation being credited against the specific number of years set forth in the original sentence.
An examination of your record reveals that you were sentenced to serve a term of seven years on July 14, 1967, the sentence being probated. On January 3, 1968, the probation was revoked and you were committed to the correctional authorities for a period of two years. As both the date of probation revocation (January 3, 1968) and the full term of two years were both within the seven-year period of time originally described for the probated sentence to run, the action in your case complied fully with the law. See Ga. Code Ann. 27-2709.

OPINION 68-516 (Unofficial)

December 27, 1968

You advised me that a town in Georgia is desirous of electing a Mayor and Town Council as provided in its charter, but that there has been no such election for many years and there are no officials in office at the present time. The citizens propose to have a mass meeting of all the qualified voters, name a municipal superintendent and proceed with an election on the day set out in the town charter.
You request my opinion on whether the State Election Board has the power to authorize the foregoing action or whether the Board can name a municipal superintendent to conduct the election. The Georgia Municipal Election Code, in setting forth

755
the powers and duties of the State Election Board, incorporates by reference Chapter 34-2 of the Georgia Election Code. Georgia Municipal Election Code 34A-110. A review of Georgia Election Code Chapter 34-2 shows that nowhere in the law is the State Election Board given the authority to name a municipal superintendent for a particular town or to authorize such action as you have set out in your request. It is therefore my unofficial opinion that the State Election Board may not authorize such action or appoint a municipal superintendent to conduct such an election.
You wish to know whether I have any suggestions as to how you may proceed in this matter. Since I do not have all the facts and am not personally familiar with the entire situation, it is difficult for me to make a recommendation as to a course of action. One suggestion might be to secure a Resolution from the General Assembly temporarily appointing such officials as are necessary to conduct a proper municipal election under the circumstances.
In your letter you mention the possibility of conducting the election with de facto officers. In such an instance, there is always the strong possibility that an interested citizen may enjoin the proceeding or may attack the results of the election. Without any controlling authority, I am at a loss to know whether or not such a course of action is advisable.

OPINION 68-517 (Unofficial)

December 30, 1968

This is in reply to your request enclosing a letter from an Assistant District Attorney. The Assistant District Attorney has suggested that the State Board of Corrections should retain in its files a detainer filed with the Board prior to the effective date of Ga. Laws 1968, p. 1110 and which is based upon the incomplete service of a sentence by a probation violator rather than a pending indictment or accusation.
Prior to the 1968 Act, the detainer practice enjoyed no legislative sanction in this State. The Act defines a detainer as an instrument based upon a pending indictment or accusation. The act further provides that the State Board of Corrections shall

756
strike from its records "all detainers filed by authorities of the State of Georgia or any political subdivision thereof which do not conform to the provisions of this Act." Ga. Laws 1968, pp. 1110, 1114. It is my opinion that the detainer in question does not comply with the requirements of the 1968 Act and should be stricken in accordance with the provisions of that Act.

OPINION 68-518 (Unofficial)

December 30, 1968

You ask under what authority the personnel of the State Crime Laboratory shall refuse to testify in civil cases.

I have attached copies of two opinions from this office which deal generally with the subject: Ops. Att'y. Gen. 1952-53, pp. 245,246, and 1954-56, pp. 336-338.

It has been the policy of the State that if the results of blood tests performed at the State Crime Laboratory pursuant to Ga. Code Ann. 21-227 or 68-1625 are admissible at all into evidence, they would be so under Ga. Code Ann. 21-219 or the Business Records Act.

The State Crime Laboratory has taken the position that its efforts and the time of its staff should be confined to the prosecution of the State's business. The reasons for such a position are apparent. The Laboratory was established as an aid to governmental agencies throughout the State; a fact which is apparent by the very name of the agency. To allow employees of this agency to testify in civil cases would so overburden the staff that they would be unable to perform their primary service to this State.

It has been the practice of the State to oppose the subpoenaing by civil litigants of any employee of the State Crime Laboratory if no other recourse is available.

Because your request involves pending litigation, the policy of this Department will not permit me to prepare you a legal opinion on this subject. I have attempted to explain the policy under which we have operated and trust that this information will be sufficient to answer your questions.

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OPINION 68-519 (Unofficial)

December 30, 1968

You contest the method of computation of the Real Estate Transfer Tax on a long-term lease used by the Clerk of the Superior Court of Fulton County.

Enclosed please find an unofficial opinion to Mr. Charles Van S. Mottola of Newnan, Georgia, dealing with this same question. This opinion sets out the position, and the reasons for that position, of the Revenue Department.

Therefore, it is my unofficial opinion that the computation of the Real Estate Transfer Tax on a long-term lease is based on the consideration (rent) when it is definite in amount, or may be definitely determined and on the value of the interest conveyed when the consideration is indefinite or is left open to be fixed by future contingencies.

OPINION 68-520 (Unofficial)

December 31, 1968

This is in response to your letter requesting my opinion as to whether or not you will be eligible for appointment to the office of Judge of the Superior Courts Emeritus on January 11, 1969.

According to the information you have furnished, you took the oath of office as Judge of the Superior Courts of the Griffin Judicial Circuit on January 11, 1955, and you were on active duty with the United States Army during World War II for a period of 3 years, 10 months and a few days.
Based upon the foregoing facts, which are assumed to be correct, I am of the opinion that you will be eligible for appointment to the office of Judge of the Superior Courts Emeritus after January 11, 1969.
In order to be eligible for appointment to the office of Judge of the Superior Courts Emeritus, a person must be:
" ... in at least his 19th year of service as judge of the superior court of the State, any service . . . in the armed forces of the United States occasioned by the National

758
emergencies of World War I, World War II or the Korean conflict, being allowable in computing such 19 years of service, . . . . " Ga. Code Ann. 24-2602a.
In 1968, the General Assembly amended the Act creating the office of Judge of the Superior Courts Emeritus as follows:
'"In granting credit for service in the armed forces of the United States, as provided for in this Act, one year of credit shall be granted for each year or fraction of a year of such service."' Ga. Laws 1968, pp. 275, 276.
To the best of my knowledge, the Courts never have adjudicated the question of the minimum time a judge must serve into the 19th year, but it would appear to me that actual service for at least a day or two should be sufficient to obviate all questions of sufficiency. In accord: Op. Atty. Gen. 68-349 and 68-53.
Based upon the foregoing facts and my previous opinions, I would recommend that you serve at least one or two days after January 11, 1969, and accept appointment to the office of Judge of the Superior Courts Emeritus at any time you deem appropriate thereafter.

OPINION 68-521 (Unofficial)

December 31, 1968

This letter is in response to your recent inquiry as to whether authority may be conferred upon the City of Macon to levy and collect taxes by amendment to the City Charter or other statutory enactment, or whether it is necessary to amend the Constitution of the State of Georgia.

Art. VII, Sec. I, Par. Ill, of the Constitution of 1945 of Georgia (Ga. Code Ann. 2-5403) provides, in part, as follows:'

"All taxes shall be levied and collected under general laws and for public purposes only. All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Classes of subjects for taxation of property shall consist of tangible property and one or more classes of intangible property including money. The General Assembly shall have the power to classify property including money for taxation and to adopt different

759
rates and different methods for different classes of such property."
The foregoing Constitutional provision lays down several prerequisites for tax legislation. The authority to tax must be derived from a general law or laws, must be for public purposes, and must be uniform in its application throughout the territorial limits of the taxing authority. Cragg v. State, 224 Ga. 196(4) (1968); Crovatt v. Mason, 10 l Ga. 246, 28 S. E. 891 (1897). It also provides for the classification of property including money for tax purposes. Generally, classification must be reasonable and not arbitrary or capricious. Fulton County v. Lockhart, 202 Ga. 878(2), 45 S.E.2d 220 (1947); Wright v. Hirsh, 155 Ga. 229, 116 S. E. 795 (1922).
The question presents itself as to whether the authority to tax can be conferred by a city charter which is unquestiop.a bly a special or local act since its application is territorially limited. Thomas v. Austin, 103 Ga. 70 l, 30 S. E. 627 (1898); Tift v. Bush, 209 Ga. 769, 75 S.E.2d 805 (1953); Crovatt v. Mason, supra.
This problem is resolved by the decision in Verdery v. The Village of Summerville, 82 Ga. 138, 141(1), 8 S.E. 213 (1888). In construing the 'general law' requirement in the foregoing provision, the Court, in an opinion written by Chief Justice Bleckley, held as follows:
"There is a relative sense in which a mere local law can, with intelligible meaning, be called a law of general obligation. If it acts upon the whole municipal area and upon all persons and property therein, with the same comprehensive generality as it would act throughout the State were it applicable to the State at large, it is a Ia w of general though local operation. This generality as to territory, with full generality as to subject matter, that is, that the tax shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the given territory [at the time of this decision, 1888, the uniformity provision required ad valorem taxation of all property], is the generality which is needful." 82 Ga. 141. See also Hutchins v. Howard, 211 Ga. 830(2), 89 S.E.2d 183 (1955).

760
It follows that valid authority to levy and collect taxes may arise from the City Charter of Macon or amendment thereto so long as the authority conferred, in other respects, satisfies constitutional requirements.
Therefore, it is my unofficial opinion that authority to levy and collect taxes, not otherwise prohibited by State Ia w or constitutional provision, may be conferred upon the City of Macon by amendment to the City Charter of Macon provided such charter provision satisfies the requirements in Art. VII, Sec~ I, Par. II I, of the Constitution of Georgia of 1945 (Ga. Code Ann. 2-5403) that the tax have uniform application throughout the territorial limits of the City of Macon and that it be for a public purpose.

TABLES OF CONSTITUTIONAL PROVISIONS,
GEORGIA LAWS AND CODE SECTIONS
Table I United States Constitutional Provisions Table 2 Georgia Constitutional Provisions Table 3 Georgia Laws Table 4 Georgia Code Annotated Sections

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TABLE 1
UNITED STATES CONSTITUTIONAL PROVISIONS
PAGE Art. VI, Cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
TABLE 2
GEORGIA CONSTITUTIONAL PROVISIONS
PAGE Art. I, Sec. I, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741 Art. I, Sec. I, Par. III . . . . ... . . . . . . . . . . . . . . . . . . . . . 216 Art. I, Sec. I, Par. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Art. I, Sec. I, Par. XXIII . . . . . . . . . . . . . . . . . . . . . . . . . 188 Art. I, Sec. III, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art. I, Sec. IV, Par. I . . . . . . . . . . . . . 140,482, 665, 714, 715 Art. II, Sec. II, Par. I . . . . . . . . . . . . . . . . . . . . . 38, 394, 503 Art. II, Sec. VII, Par. I . . . . . . . . . . . . . . . . . . . 507, 588, 615 Art. III, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Art. III; Sec. IV, Par. VI . . . . . . . . . . . . . . . . . . . . . . 188, 207 Art. III, Sec. V, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Art. III, Sec. VII, Par. VIII . . . . . . . . . . . . . . . . . . . . . . . 551 Art. III, Sec. VII, Par. IX . . . . . . . . . . . . . . . . . . . . .137, 656 Art. III, Sec. VII, Par. XV . . . . . . . . . . . . . . . . . . . . . . . . 524 Art. III, Sec. VII, Par. XVII . . . . . . . . . . . . . . . . . . . . . . . 602 Art. V, Sec. I, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . 436 Art. V, Sec. I, Par. XV . . . . . . . . . . . . . . . . . . . . . . 86, 87,88 Art. V, Sec. II, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Art. V, Sec. VI, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 Art. VI, Sec. I, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art. VI, Sec. II, Par. II . . . . . . . . . . . . . . . . . . . . . . . . . . 682 Art. VI, Sec. X, Par. II . . . . . . . . . . . . . . . . . . . . . . .21 0, 611 Art. VI, Sec. XI, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . 622 Art. VI, Sec. XI, Par. II . . . . . . . . . . . . . . . . . . . . . . .622, 726 Art. VI, Sec. XII, Par. I ............................ 623 Art. VI, Sec. XIII, Par. I ........................ 727
Art. VII, Sec. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Art. VII. Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Art. VII, Sec. I, Par. II .. 216, 365, 437, 475, 476, 529, 580, 668 Art. VII, Sec. I, Par. III . . . . . . . . . . . . . . . . . . . . . . .758, 760 Art. VII, Sec. I, Par. IV . . . . . . . . . . . . . . . . 142, 173, 338, 399 Art. VII, Sec. II, Par. I . . . . . . . . . . . . . . . . 137, 397, 398, 557 Art. VII, Sec. II, Par. VI . . . . . . . . . . . . . . . . . . . . . . . . . . 28

764
GEORGIA CONSTITUTIONAL PROVISIONS -Continued
PAGE Art. VII, Sec. III. Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Art. VII, Sec. III, Par. III . . . . . . . . . . . . . . . . . . . . . . . . 476 Art. VII, Sec. III, Par. VI . . . . . . . . . . . . . . . . . . . . . . . . 188 Art. VII, Sec. III, Par. VIII . . . . . . . . . . . . . . . . . . . . . . . 724 Art. VII, Sec. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726 Art. VII, Sec. IV, Par. I ............ 212, 323, 557,725,726
Art. VII, Sec. IV, Par. I through Par. VI. .............. 323 Art. VII, Sec. IV, Par. II ................ 4, 725, 726, 727 Art. VII, Sec. V, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . 399 Art. VII, Sec. VI, Par. I ..... 217,396,397,524,711,712,713 Art. VII, Sec. VI, Par. II . . . . . . . . . . . . . . . . . . . . . .213, 727 Art. VII, Sec. VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Art. VII, Sec. VII, Par. I .................. 224, 225, 701 Art. VII, Sec. VII, Par. IV . . . . . . . . . . . . . . . . . . . . . . . 3, 19 Art. VII, Sec. VIII, Par. I . . . . . . . . . . . . . . . . . . . . . . . . 232 Art. VII, Sec. IX, Par. I . . . . . . . . . . . . . . . . . . . 137,604, 657 Art. VII, Sec. IX, Par. II ................ 11, 603, 605, 712 Art. VII, Sec. IX, Par. III . . . . . . . . . . . . . . . . . . . . . . . . 604 Art. VIII, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . 678 Art. VIII, Sec. V, Par. I ............ 224, 242, 328, 520, 668 Art. VIII, Sec. XII, Par. I . . . . . . . . . . . . . . . . . . . . .531, 532 Art. IX, Sec. I, Par. I and II . . . . . . . . . . . . . . . . . . . . . . . 173 Art. XI, Sec. II, Par. I . . . . . . . . . . . . . . . . . . . . . 40, 447, 708 Art. XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art. XII, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 466 Art. XII, Sec. I, Pars. I to III . . . . . . . . . . . . . . . . . . . . . . 237 Art. XII, Sec. I, Par. II . . . . . . . . . . . . . . . . . . . 466, 549, 710 Art. XII, Sec. I, Par. III . . . . . . . . . . . . . . . . . . . . . . . . . . 710 ArL XIII, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . 695, 696, 698 Art. XIV, Sec. I, Par. I . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Art. XV, Se-c.ii-A, Par.l . . . . . . . . . . . . . . . . . . . . . . . . 180

765
TABLE 3 GEORGIA LAWS

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1787,Cobb 366 ..................................... 395

1823,Cobb 209 ..................................... 395

1859 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

1865-66 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

1877 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

1878-79 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

1889

181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

1890-91

102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

226 ...................................... 34

1020 .................................... 558

1021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 558

1894

80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

1898

105 . . . . . . . . . . 189 J 1900

93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

1901

57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

1908

86 ....................................... 50

1909

131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

1911

235 ..................................... 447

1913

143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447

1917

306 ..................................... 218

309 ..................................... 218

926 .............................. ....... 550

766
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1917

927 ..................................... 550

1918

256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

1921

466 ..................................... 476

1931

7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407' 646, 723

24 ....................................408, 724

39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647

1933

61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407

193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

1934

366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

1935

11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723

992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1937

245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

264 ...................................... 64

270 ...................................... 64

322 ..................................273, 352

339 ..................................... 352

896 ..................................... 430

898 ..................................... 430

1415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

1937-38, Ex. Sess.

3 ....................................... 338

103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 611

145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

156 ..................................... 240

161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

162 ..................................... 338

767
GEORGIA LAWS--Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1937-38, Ex. Sess.

163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

?14 .................................401, 402

217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401

220 ..................................... 402

221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .401, 402

297 ..................................... 240

299 ..................................... 240

307 ..................................... 657

311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657

314 ..................................... 657

315 ..................................... 657

390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

1939

144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711

160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 114

175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 114

399 ....................................... 3

403 ....................................... 3

447 ..................................447,448

448 ..................................... 448

1943

363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

702 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

1945

294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711

320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711

351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 642

352 ..................................165, 580

352 to 356 ................................ 748

354 ..................................165, 580

362 ..................................... 486

1946

12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 173,338,339

14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 338

87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

1947

9 ....................................... 282

78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' . . . . . . . 130

768
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1947

206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282

263 ..................................... 299

420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

1183 ................................ .338, 339

1300 .......... -. . . . . . . . . . . . . . . . . . . . . . . . . . 495

1324 .................................... 495

1949 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .347, 692
160 ..................................... 347

373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 1204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 173 1206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

1209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 1210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

1523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 1950

50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

2615to2617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 1951

31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

36 ...................................... 290 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 291 .. ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608

360 ..................................... 547 360 to 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 733 581 . . . . . . . . . . . . . . . . . . . . . . .-:--. ........ .325' 558

653 ..................................... 530 668 ..................................... 656 669 ..................................... 656 828 ...................................... 40

769
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1952 46 ...................................... 514

1953 210 ...................................... 223 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
234 . . . . . . . . . . . . . . . . . . . . . . . - - . . . . . . . . . . . . 240
379 ..................................... 514 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 389 ..................................... 514 533 ..................................... 188 602. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 602 to 613 ................................ 254 604 ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 2163 .................................... 282 2476 .................................... 516 2478 .................................... 516 3237 .................................... 282

1953, Nov. Sess. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .479, 486 109 to 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479 305 ..................................... 692 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338 378 ...................................... 338 379 ..................................143, 154 382 ..................................... 143 389 ..................................... 154 412 ..................................... 145 556 ..................................391, 441 624 ..................................... 556 2352 .................................... 416

1955

309 ................................... 23,24 312 ...................................... 23 319 ...................................... 24 559 ..................................... 403 564 ..................................300, 301 659 ..................................... 286 2874 .................................... 483 2876 .................................... 483

770
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1956

27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201, 345

52 ...................................... 204

60 .......................... 66, 67' 188, 634, 724

61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 67

62 ...................................... 724

148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2' 163' 217

173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 174 ..................................... 217

336 ..................................... 530

404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

674 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .349, 351

675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .349, 351

676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .349, 351

2615 .................................... 516

2616 .................................... 516

2915 .................................... 483

2919 .................................... 483

1957 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

468 ..................................... 282

477 .............................. 152, 163, 504

479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : 504

500 .. ' .................................. 282

2561 .................................... 495

2566 .................................... 495

3230 ..................................... 516

3232 .................................... 516

1958

47 ...................................... 548

48 ...................................... 548

61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428

63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428

771
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1958

64 ...................................... 428

79 ...................................... 428

183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322

269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172, 173

276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

302 ..................................... 530

388 ..................................... 323

400 ..................................... 122

406 ..................................... 122

413 ......................... 67, 68, 188, 635, 636

1959 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66,67,68

37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 636

60 ....................................... 68 61 . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . . . . . 68, 416

88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655

159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .360, 512

283 ....................... 333, 626, 628, 629, 630

284 .............................. 333, 626, 628 286 ..................................... 628

287 ..................................... 628

289 ..................................629, 630

311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722

343 ..................................... 492 344 ..................................... 492

1960

3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531

85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

86 ...................................... 382

87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246, 479

163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

164 ..................................... 246

266 ..................................... 716

777 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 801, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640

880 ..................................153, 670

988 ..................................... 443

989 ..................................... 443

772
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1960

1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

1009 to 1019 .............................. 254 1010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

1162 .................................... 439 1163 .................................... 439 1232 .................................... 216 2517 .................................... 282 2920 .................................... 129

1961 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .748, 750 148 ..................................... 748 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750 214 ..................................... 516 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516 222 ..................................... 412 223 ...................................... 412 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 437 ..................................... 254 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2862 .................................... 426 3097 .................................... 466

1962
11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 11 to 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 119 ..................................... 290 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 427 .. ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 459 ..................................... 556 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703 602 ..................................247, 498 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247' 498 673 ..................................... 516 674 ..................................... 516 752 .................................. 11,603 753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 982 ..................................... 549

773
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT
1962

PAGE

2370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

1963

81 . . . . . . . . . . . . . . . . 7, 307,308,382,383,384,597,598 82 ...................................307, 597 86 ...................................... 382 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .382, 383 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......382, 384 100 ..................................... 597 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 116 ..................................308, 383 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 222 .............................. 616, 619, 620 223 ..................................... 620 333 ..................................... 390 354 ..................................... 217 355 ..................................... 217
480 . . . . . . . . . . . . . . . . . . . . -. . . . . . . . . . . ...... 361 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 750 523 ..................................... 750 630 ..................................... 124 635 ..................................... 124 3549 .................................... 516 3550 .................................... 516

1964
3 ................................. 94, 430, 553 9 ........................................ 94 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713 97 ...................................... 713 146 ..................................... 724 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 226 ..................................... 282 228 to 230 ................................ 350 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 636 319 ..................................... 659 320 ..................................... 659 338 ..................................... 392 382 ...................................... 54

774
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1964

390 ............................ - .. - ...... 54

416 .................................... 495

427 ..................................... 495

491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

492 ..................................... 217 499 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195,431, 541

501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

650 to 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541 683 ..................................248, 498

684 ..................................248, 498 686 ..................................... 548

687 ..................................... 548

689 ..................................... 395 1063 .................................... 524

1065 .................................... 524

1964, Ex. Sess.

26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

382etseq............................... 17,51

398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

1965

13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561

18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752

24 ...................................... 752

165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507

217 ..................................... 577

218 ..................................... 577 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577

222 ..................................... 577

293 ..................................... 220

298 ..................................219, 277

299 ..................................... 277 332 ................-..................... 724

385 ..................................... 617

396 ..................................... 534

397 ..................................... 534

458 ..................................... 275

590 ..................................... 166

591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

752 ..................................... 180

775
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1965

2395 .................................... 679

1966

155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 210 ..................................228, 229 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 746 226 ..................................... 746 227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 746 249 ..................................... 275 409 ..................................219, 220 487 ..................................... 725 517 .......................... 1,20,239,240,477 520 ..................................... 477 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .405' 406 603 ..................................... 406 604 ..................................... 406 761 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520 761 to 763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520 870 ..................................... 465 1066 .................................... 726
1092 .................................... 224 1092 to 1100 .............................. 520 1097 .................................... 224 1098 .................................... 225 1099 .................................... 225 2233 .................................... 227

1967

12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43,411, 594 64 ....................................... 43 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 82 ....................................... 42 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 252 ..................................... 179

776
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT

PAGE

1967 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 122

310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

423, et seq................ 176, 684, 685, 686, 687, 688

425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 684, 686, 688

426 ..................................... 684

429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .685, 687 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

433, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - ... 69

452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451

469 . . . . . . . . . . . . . . . . . . . . . . . . . . . 132, 133, 210, 211

471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133, 211

539 ..................................... 530

542 ..................................... 362

788 ...................... 40, 42, 82, 83, 84, 89, 90,

91,92,95, 105,189,230,

258,332,439,480,490,625,

667,691

797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715

798 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

882 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275

883 ...................................... 50

889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275

1132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465

1143 .................................... 465

2370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

2512 .................................... 567

2718 . . . . . . . . . . . . . . . . . . . . . . . . . . 520, 521, 522, 523

2719 . . . . . . . . . . . . . . . . . . . . . . . . . . 520, 521, 522, 523

3108 .................................... 669

3111 .................................... 669

3114 .................................... 669

3211 ......................................4

3213 ......................................4

3214 .......................................4

1968

9 ............................ .480, 518,554, 578

9 to 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .480, 518

11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

15 ...... ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480

777
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT
1968

PAGE

16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .480, 554

18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578

23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640

23, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640

29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640

30 ...................................... 440

30, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440

32 ...................................... 440

35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440

36 ...................................... 419

43 ....................................... 530

126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697

146 .................... 411,412,414,594,597,599

178 to 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594

180 ....................... 411,412,414,597,599

190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412

197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .497, 584

209 ..................................... 419

259 ....................... 517,647,692,693,699

261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699

263 ..................................... 647

264 . . . . . . . . . . . . . .....................647' 693

267 .......................... 518 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693

275 ................ 478,486,487,501, 555,613,758

276 .......................... .478, 555, 613, 758

358 ..................................... 168

359 ..................................... 168

387 ..................................... 577

389 ..................................323, 577

390 ..................................... 577

434 ..................................494, 495

435 ..................................494, 495

436 ..................................... 495

441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .504, 505

444 ..................................... 504

445 ..................................... 505

448 ..................................... 366

778
GEORGIA LAWS-Continued

YEAR OF ACT

PAGE NUMBER OF ACT
1968

PAGE

452 ..................................... 366

559 ..................................... 379

790 ..................................... 624

835 ..................................... 724

988 ..................................... 470

992 .............................. 624, 724, 726

992, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . .623, 624

994 ..................................624, 724

1013 ............................. 608, 609, 610

1033 .................................... 609

1035 .................................608, 610

1102 .................................666, 690

1110 ..........................734, 735, 755, 756

1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735

1114 .................................... 756

1148 .................................... 475

1163 .................................... 323

1163 to 1166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514

1164 ................................... .323

1216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .531

1230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .651

1367 .....................................724

1369 .....................................724

1369to1371 ...............................636

1370 .................................724, 732

1371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 732

1399 .................................670, 672

1404 .................................... 530

1532 .................................... 696

1939 .................................... 696

2071 .................................... 409

2235, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .309

2835 .................................663, 664

2836 .................................663, 664

2839 .................................... 664

2840 .................................... 664

3361 .................................... 482

3756 .................................... 524

779

TABLE 4 GEORGIA CODE ANNOTATED SECTIONS

CODE SECTIONS

PAGE

2-102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741 2-114 ..................................... 303 2-123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 2-301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 2-302 ..................................... 654 2-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 409, 482, 665 Ch. 2-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 2-801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 394, 503 2-1201a ............................. 507,588, 615 2-1301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 2-1603 ..................................... 87 2-1606 ................................. 188, 207 2-1703 .................................... 159 2-1704 .................................... 159 2-1705 .................................... 159 2-1803 .................................... 159 2-1908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 2-1909 ................................. 137, 657 2-1915 .................................... 524 2-1917 .................................... 602 2-2707 to 2-2708 ............................. 668 2-3011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159, 436 2-3015 .................................. 86, 87 2-3016 ..................................... 86 2-3102 .................................... 137 2-3501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 2-4502 .................................210,611 2-4601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622 2-4602 ............................. 622,682,726 2-4701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 623 2-5402 ............. 94, 365, 366,437, 529, 530, 668, 727 2-5403 .................................758, 760 2-5404 ............................. 142, 173, 400 2-5501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 397, 557 2-5506 ..................................... 28 2-5601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 2-5606 .................................... 188 2-5608 .................................... 724 2-5701 . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 323, 557,725 2-5702 ........................... 4, 725, 726, 727

780

GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

2-5801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

2-5901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397, 711, 712

2-6001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224, 225, 702 2-6004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19

2-6101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 2-6201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 604, 657

2-6202 .......................... .11, 603,605,712

2-6203 .................................... 604 2-6401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 678

2-6801 . . . . . . . . . . . . . . . . . . . . . . . . . . 224, 328, 520, 668

2-6802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .520, 521

2-7901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 708

Ch. 2-80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 2-8001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549 2-8002 .................................... 710 2-8003 .................................... 710 2-8101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .696, 698

2-8402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Ch. 3A-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 3A-101 to 3A-122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335

3A-114 ................................ .392, 393 3A-117 .................................... 393 3A-119 .................................... 392 3A-120 .................................... 393

6-805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 752 Ch. 7-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 7-223 ..................................... 359

11-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 13-1801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 13-2046 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 13-2067 .................................... 667

13-2203 .................................... 320

13-9933 .................................245, 286

13-9937 .................................... 245

13-9939 .................................... 320

Ch. 16-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 16-412 .................................657, 658 16-420 .................................657, 658

17-510 : .. ......... 495 20-108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

781
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

20-111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

20-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529

20-202 .................................... 530

20-205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529

20-1007 .................................563, 699

21-202 ................................. 106, 256

21-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 256

21-205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 420, 421

21-219 .................................... 756

21-227 . . . . . . . . . . . . . . . . . . . . . . 252,254,257,319,756

21-228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

22-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 602

22-1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

22-1801 to 22-1813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400

22-1804 ............................. 400,401,402

22-1808 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .400, 401

22-1819 ............................. 400,401,402

22-1820 ................................ .400, 402

22-1881 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Ch. 23-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

'23-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

23-204 .- ...................................... 321

23-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

23-1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .433, 746

23-1301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

23-1302 ..................................... 50

Ch. 23-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

23-1705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499

23-1705 to 23-1709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500

23-1708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499

23-1713 .................................... 189

23-1714 .................................... 189

23-1716 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

23-2901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

23-2902 .................................... 217

Title 24 .................................... 623

24-110 .................................... 312

24-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743

24-406 ............................. 588, 611' 744

24-408 .................................744, 745

Ch. 24-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468

782
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

24-801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .708, 736

24-806 ............................. 709, 736, 737

24-806 to 24-809 ............................. 737

24-807 .................................... 736

24-808 .................................... 736

24-809 .................................... 737

24-814 .................................... 650

24-817 .................................... 468

24-819 .................................... 650

24-820 ................................ .469, 470

24-1 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 1' 611

24-1716 .................................... 386

Ch. 24-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

24-2401, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607

24-2420 . . . . . . . . . . . . . . . . . . . . . . . ............. 608

24-2432 . . . . . . . . . . . . . . . . . . . . . . . ............. 609

24-2602 ..................................... 56

Ch. 24-26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 485

24-260 1a, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648

24-2602a ..................... 478,479,485, 501, 758

24-2604a . . . . . . . . . . . . . . . . . . . . . . ............. 486

24-2605a.1 .................................. 246

24-2608a, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . .647, 648

24-2609a .......................... ......... 648

24-2610a ............................ 478, 485, 486

24-2611a ........................ .478, 479, 485, 486

24-2612a ........................ .478, 479,485,486

24-2614a ................................... 487

24-2615a ............................ 478,479,487

24-2701 . . . . . . . . . . . . . . . . . . . . . . . ............. 433

24-2704 . . . . . . . . . . . . . . . . . . . . . . . ............. 433

24-2707 .................................... 433

24-2709 .................................239, 433

Ch. 24-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .623, 682

24-2904 .................................... 647

24-2904.1 .................................. 623

24-2908 .................................... 682

24-2913 .................................... 516

Ch. 24-29A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

24-2904a ................................... 497

24-2909a ................................... 229

783
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

24-3104 ................. ; .415, 416,651,653,654,751

24-3406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470, 471

24-3407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .470, 471

24-3612 .................................... 609

24-4510 .................................... 609

26-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

26-301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444

26-1302 .................................... 716

26-2002 .................................... 753

26-2004 .................................... 753

26-3903 ..................................... 38

26-3904 ..................................... 38

26-4004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 244

Ch. 26-50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

26-5002 to 26-5028 ............................ 635

26-5003 to 26-5028 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731

26-5004 ...........................67, 635,731,732

26-5008 .................................... 636 26-5009 ............................. 188, 206, 207

Ch. 26-50A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 731

26-5001ar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636

26-5702 .................................... 459

26-6301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .664, 665

26-6301.1 ...............................664, 665

26-6404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 161

26-6501 . . . . . . . . . . . . . . . . . . . . . . 160, 504,642, 644, 645

26-6502 .................... 61, 160,642,643,644,645

26-6507 .................................... 644

26-6508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645

26-6915 .................................329, 330

26-6920 .................................... 330

Ch. 26-75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .329, 330

26-7501 .................................... 330

27-207 ............................. 370, 467, 550

27-211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

27-212 .................................... 467

27-704 .................................... 510

27-1401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

27-2401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .751' 752

27-2502 .......................... 200, 343, 562, 754

27-2505 .................................113, 408

784

GEORGIA CODE ANNOTATED SECTIONS

-Continued



CODE SECTIONS

PAGE

27-2506 ............................. 111,245,455

27-2527 .................................... 562

Ch. 27-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

27-2602 .................................... 443

27-2602, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 27-2706 ..................................... 22

27-2709 .......................... 200, 344, 562, 754

27-2714 .......................... 200, 201,344,345

27-2723 .................................... 435

27-2903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

27-2908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

27-2909 .................................281, 282 29-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565

29-427 .................................... 190 32-119 .................................... 407

32-121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337,407, 723 32-141 to 32-143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 723 32-143 .................................... 723 32-428 .................................... 719

32-601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553

32-607 ..................................... 94

32-610 .................................... 553

32-614 .................................... 430

32-622 ............................. 552, 553, 679

32-645 .................................... 679

32-648 .................................... 553

32-649 .................................... 553 32-650 ..................................501, 502 32-702 ..................................... 80 32-703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 430

32-704 ..................................... 80

32-713 ................................ .429, 430 32-807 .................................... 214

32-810 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361

32-820 .......................... 359, 360,361,512

Ch. 32-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519

32-904 ................................ .417, 418 32-914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170, 171

32-924 .................................... 426

32-937 ............................. 554, 555, 678

32-942 ................................ .425, 532

785
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

32-1 003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611 32-1004 .................................... 528 32-1006 ..................................... 42 32-1020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 171 32-1104 .................................... 296

32-1105 .................................... 296 32-1106 .................................... 567 32-1118 .................................... 532 Ch. 32-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 519

32-1401 . . . . . . . . . . . . . . . . . . . . . . . . . . 500, 567,706,708 32-2101, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 32-2104 .................................... 214

32-2106 .................................... 303 32-2107 ...... ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 32-2114 .................................170,171 32-2316 .................................... 205 32-2316 to 32-2318 ............................ 204 32-2317 .................................... 205 32-2321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .491, 492 32-2901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294, 295, 2.96

32-2904 ........................... 45, 46, 295, 296 32-2905 ..~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 32-3302 .................................... 577 32-3305 .................................... 577

32-3307 .................................577' 578 32-4102 .................................... 214

Title 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 51 34-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

34-102 34-103
34-1 04 34-105

.............................. 51' 297' 525 ............. 50, 79, 236, 238, 243, 292, 331' 354,
385,419,484,485,581,630 . . . . . . . . . . . . . . .- . . :~ . . . . . . . . . . . . . . . . . . 161 ................ 83, 130, 131, 168,449,450,456

34-107 34-202 34-401 34-402 34-501

.................................... 127 .................................... 485 ........................... 4, 131,312,386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .312, 386 .................................... 354

Ch. 34-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481

34-602 ................ 85, 122, 169, 242, 329, 352, 630 34-612 .................................... 172

786
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

34-614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

34-619 ................................ 172, 353, 481

34-620 ................................... .118, 481

34-621 ....................................... 117 34-624 ....................................481, 485

34-625 ................................ 168, 353, 481

34-627 ............................. 119, 173, 293, 523

34-628 ....................................119,285

34-629 ................................ 292, 354, 355

34-631 ................................ 119, 168,481

34-632 ....................... 85, 243, 293,419,481, 523

Ch. 34-7 ..................................... 331

34-702 ....................................... 332

34-704.1 ...................................... 332

34-705 .................................... 79, 484

34-708 ........................................ 49

34-801 ........................... 51, 83,482, 581, 582

34-802 ............................. .51, 581,585, 588

34-805 ....................................... 583

34-806 ...................... 131, 448,449, 588, 610, 611

34-809 ....................................... 140

34-902 ................................... .313, 456 34-1001 ............. 48, 161, 294, 313,447,449,453,454,

505,506,507,508,522,582,585,737,

745

34-1002 ....................................... 48

34-1003 ............................... 568,582, 584

34-1004 ............................ 297, 449,454,456

34-1006 ...................... 83, 130, 313,581, 582, 583

34-1007 ...................................... 354

34-1010 ............................ 309, 453,507, 522

34-1012 ............................ 313, 453,454,456

34-1103 ............................ 583, 585,610, 621 34-1201 ...................................... 238

34-1206 ...................................... 238

34-1219 ................................ 49,235,236

34-1220 ....................................... 49

34-1227 ........................................4

34-1301 ...................................... 354

34-1302 ...................................... 355

34-1303 . . . . . . . . . . . . . . . . . . .................... 485

787
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

34-1304 ........................................ 312

34-1307 ................................. 450, 451, 525

34-1308 ........................................ 485

34-1310 ..................... 292,293,355,418,419,523

34-1314 ...................................... 285

34-1315 ...................................... 285

34-1316 ...................................... 285

34-1319 ............................... 450, 526, 587

34-1321 ...................................... 586

34-1322A ..................................586, 621

34-1326 ...................................... 586

34-1331 ...................................140, 449

34-1401 ...................................... 321

34-1402 ............................ 101,168,353,481

34-1405 ...................................... 655

34-1407 ............................... 285, 292, 355

34-1505 ...................................... 586

34-1507 ...................................... 586

34-1509 . . . . . . . . . . . . . . . . . . . . .................. 664

34-1512 ...................................... 586

34-1514 ............................ .48, 297, 298,525

34-1515 ............................ 583, 588,737,745

34-1913 ..................................... 3, 450

34-2005 ....................................737, 745

34A-906 . . . . . . . . . . . . . . . . . . . . .................. 463

34A-907 . . . . . . . . . . . . . . . . . . . . .................. 463

34A-1219 ..................................... 463

35-1001 to 35-1011 ............................. 155

36-102a ...................................... 534

36-104a ...................................... 534

36-105a ...................................... 534

36-106a ...................................... 534

36-802 ....................................... 291

38-2201 to 38-2203 ............................ 722

39-701 ....................................... 115

39-1103 ...................................... 223

39-1104 ...................................... 223

39-1105 ............................... 223,697, 698

40-314 ..................................... 86,88

Ch. 40-4 .................................. 11,604

40-406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ' 604

788
GEORGIA CODE ANNOTATED SECTIONS -Continued

CoDE SECTIONS

PAGE

40407 ...................................... 11,605

40-408 ......................................... 306

40-412 ...................................... 11, 605

40418 .......................................... 11

40-420 .......................................... 11

40-1602 ........................................ 611

40-1610 ........................................ 646

40-1902 .................................... .170, 337 40-1909 ........................................ 170

40-1937 ...................................... 6, 114 40-2207 ..................................... 39,439

40-2241 ........................................ 656

40-2501 ..................................... 158, 159

40-2503 .....................................656, 693

40-2511 ........................................ 656

40-2512 ........................................ 347

40-2529 ........................................ 656

40-2608 ......................................... 30

Ch. 40-27 ...................................655, 741

40-2701 .....................................741, 743

40-2701 to 40-2703 ...........................728, 733

40-2702 .....................................741, 743 40-2703 ........................................ 742

Ch. 40-29 ...................................... 179

40-2902 ........................................ 179

40-9904 .......................................... 6

43-124 ...................................... 64, 144

43-218 ....................................... 24, 25

43-233 .......................................... 23 Ch. 43-2A .................................. .325, 558

43-201A ........................................ 325

43-212a .............................. 558, 560,612,613

43-809 ...................................... 193, 274

43-1304 ........................................ 147

45-113 ......................................... 274

45-115 ......................................... 156 45-907 .......................................... 96

45-908 .................... " ..................... 96

46-805 ........................................... 7

47-1404 ........................................ 693

.49420 ......................................... 605

789
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

49-604 .......................... .................444

49-612 .......................................541, 542

49-901 ......................................... 502

49-902 ......................................... 502

Ch. 51-1 ....................................... 194

51-101 ......................................... 173

Ch. 51-9 ....................................... 173

Ch. 51-13 ...................................... 173

51-1502 ........................................ 173

53-105 .................................. 458, 459, 460

Ch. 53-2 ....................................... 169

54-909 ......................................... 556

56-102 ......................................... 287

56-103 .................................. 262, 287, 749

56-104 .................................. 262, 287' 749

56-109 ................................... ...... 749

56-214 ......................................... 289

56-216 .......................................... 18

56-302 .................................. 287' 288, 289

56-413 ......................................262, 263

56-803a ........................................ 589

56-2410 ........................................ 749

56-2411 ........................................ 288

56-2418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751

56-3008 ................................. 588, 589, 590

56-3018 ........................................ 464

57-101 ......................................... 577

58-122 .......................................... 99

58-207 ......................................... 680

58-612 ......................................714, 715

58-614 to 58-61 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715

58-735 .......................................... 68

Ch. 58-8 ........................................ 22

Ch. 58-9 ........................................ 22

Ch. 58-10 ................................. 5, 144, 610

58-1003 ................................... 5, 144, 610

58-1007 ........................................ 610

58-1029 ........................................ 196

58-1032 ........................................ 144

58-1038 ........................................ 144

58-1065 ......................................... 99

790
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

59-106 ............................... - ...........384

61-101 .................................... .189, 190

Ch. 62-19 ..................................... 160

66-102 ........................................ 356

66-103 ................. - ..................... 502

67-1701 ....................................... 115

Title 68 ....................................... 132

Chs. 68-1 to 68-4 ............................... 469

68-109 ....................................... 469

Ch. 68-2 ..................................... 469

68-201 ................................ 352, 483, 484

68-213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 0 286

68-214.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 531

68-221 .................................... 44, 352

68-223 ....................................... 530

68-244 ....................................... 286

68-244 to 68-253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

68-254 ....................................... 530

68-254.1 ...................................... 530

68-256 ....................................... 530

68-260 .......................................... 531

Ch. 68-4 . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . 469

68-405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .280, 281

68-413 .................................... 470

68-427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

68-402a .................................... 115

68-415a .................................... 666

68-417a .................................... 497

68-420a ................................ .497, 660

68-421a ................................. 114, 592

68-432a .................................... 584

68-433a .................................... 496

68-518 .................................... 738

68-525 .................................... 738

68-623 .................................... 738

68-633 .................................... 738

68-1003 .................................... 738

Ch. 68-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Ch. 68-15 to 68-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

68-1502 ................... 109, 110,441,648,649,710

Ch. 68-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

791
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

68-1601 .............................. 132, 133, 264

68-1618 to 68-1625 ........................... 132

68-1623 ..................................263, 264

68-1624 ..................................... 264

68-1625 ........................... 132, 133, 349, 756

68-1626 ................................. .403, 650

68-1633 ..................................... 405

68-1667 ..................................648, 649

68-1669 ..................................... 584

68-1682 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Ch. 68-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

68-1707 ..................................... 470

68-1715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

68-1720 ..................................... 710

68-1723 ..................................... 109

68-1723 to 68-1726.5 ......................... 390

68-1723 to 68-1726.6 . . . . . . . . . . . . . . . . . . . . . .109, 110

68-1724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391

68-1726 .............................. 109,391,441

68-1726.6 .................................109, 110

68-9901 ..................................... 352

68-9902 ..................................... 244

68-9908 ..................................... 352

68-9921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

68-9926 ..................................109, 132

68-9927 ....................... 109, 132, 133, 349, 351

69-201 ................................... 34, 188

69-202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701

69-209 ...................................... 188

69-605 ...................................... 659

Ch. 69-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277

69-902 ................................ 52, 278, 290

69-903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 290

69-904 ...................................277' 278

69-904 to 69-912 ..........................219, 220

69-908 ...................................... 219

69-1015 to 69-1020 ........................219, 220

69-1016 ..................................... 277

Ch. 69-12 ............................ 139, 186, 515

69-1201 ..................................... 514

69-1203 ..................................... 515

792
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

69-1204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515 69-1211 ..................................... 186 73-401 to 73-409 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 74-104 ...................................... 529 77-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Ch. 77-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 77-305 ...................................... 164 77-306 ...................................... 164 77-307 ...................................... 164 77-309 ................. 100,101,102,111,112,169,217 77-310 ...................................163, 164 77-312 ...................................... 217 77-313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 77-315 ...................................... 126 77-318 ............................ 152, 153,154,672 77-329 ...................................... 126 77-501 ...................................... 159 77-502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 77-514 ....................................... 39 77-533 ...................................... 222 Ch. 77-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 670, 672 77-902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 77-904 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 78-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 78-410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 711 78-901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 78-905 ....................................... 36 78-1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 63 78-1010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Ch. 78-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247, 248 78-1201 .............................. 248, 497' 498 78-1205 ..................................... 497 78-1206 ..................................247, 498 79-401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .385, 630

79A-101, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 79A-403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 79A-806 .................................... 76 84-215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 84-509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 84-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 76

793
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

84-809 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Ch. 84-9 . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 75, 106, 108

84-901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

84-906 ....................................... 74

84-907 ...................................... 106

84-927 ...................................... 107

84-1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-1209 .................................75, 76,78 84-1401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

84-1505 ...................................... 122

Ch. 84-17 .................................... 160

84-21 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

84-2209 ...................................... 122 84-2901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-2916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-3001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-3005 ...................................... 121

84-3101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

84-3402 ..................................... 526

84-3409 .............................. 300, 301, 527

8'4-3508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 84-3711 ...................................... 121

84-4019 ..................................... 122 84-4101 ..................................... 335

84-4102 ................... 121, 123,333,334,335, 625,

626,628,629,630

84-4103 ....................................... 335

84-9914 ........................................ 74

84-9918 ........................................ 77

84-9919 ........................................ 77

84-9967 ....................................... 626 85-105 ........................................ 566

85-201 ..................................... 47, 566

85-603 ........................................ 233

Ch. 85-8 ....... ; .............................. 128

85-801 ........................................ 691 Ch. 85-11 .................................. 194, 667 85-1101 ....................................... 194

.85-1104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

86-1109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 104, 105

Ch. 87-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519

794
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

Ch. 87-3 ..................................... 519

88-102 ....................................... 227

88-103 ........... ............................ 227

88-105 ....................................... 227

88-108 ....................................227, 228

88-110 ................................ 227,228,432

88-111 ....................................... 227

88-501 ....................................... 444

88-506 ....................................540, 541

88-518 ....................................... 195

88-903 ....................................... 576

Ch. 88-13 .................................... 431

88-1302 ...................................... 432

88-1306 ...................................... 432

88-1308 ...................................... 432

88-1309 ...................................... 431

88-1715 ...................................420,421

Ch. 88-18 ..................................... 399

88-1802 ...................................... 398

88-1803 .................................. .400, 417

88-1805 ...................................... 398

88-1807 ...................................... 417

88-1808 .................................. .400, 417

88-1812 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 7

Ch. 89-1 ..................................... 447

89-101 ................................. 38, 174, 395

89-103 .................... 22, 33, 188, 206, 292,296,310,

448,473

89-106 ....................................... 108

89-107 ....................................... 108

89-419 ....................................... 361

89-429 ....................................... 361

89-501 ....................................... 158

89--505 ....................................... 395

89-903 ....................................... 557

89-904 ....................................... 188

89-913 ............................. 230, 634,731,732

89-913 to 89-918 ........................ 188, 634,731

89-914 ........................................ 634

89-915 ........................................ 635

89-916 ....................................635;723

Ch. 89-12 .................................... 750

795
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

89-1203, et seq................................ 748

89-1204 ...................................... 748

89-1206 ...................................... 750

89-1301 ...................................... 556

89-1410 ...................................... 750

89-991 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724

91-101 ....................................... 724

91-118 ....................................... 166

91-121 ....................................165, 748

91-122 ....................................165, 580

Ch. 91-1A ..................................... 724

91-503a ...................................... 204

91-504a ...................................... 205

91-701 ........................................ 88

91-702 ........................................ 88

92-101 ....................................... 646

92-113 ........................................ 546

92-115, et seq................................. 240

92-116 to 92-123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

92-123 ...... , ...................... 240, 242, 338, 339

92-130 ....................................... 338

92-161 to 92-184 .............................. 592

92-162 .................................... 143, 241

92-164 ....................................592, 718

92-166 ....................................... 718

92-168 ....................................... 718

92-169 ....................................... 592

92-179 ....................................... 167

92-182 ....................................... 168

92-183 ....................................... 154

92-201 ....................................142, 242

92-219 ...................... 127, 173, 194,232,233,234

92-232 ....................................... 128

92-233 ....................................128, 233

92-234 ....................................... 233

92-801 ............................. .47, 479,624,680

92-801, et seq. . ............................... 489

92-802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

92-805 ....................................... 624

92A-803 ........................................ 457

92A-804 ........................................ 457

94-503 ...................................... 59, 606

796
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

95-108 ......................................... 150

95-203 ...................................... 148, 149

92-207 ..................................... .148, 149

95-608 .......................................... 35

95-610 .......................................... 35

95-611 .......................................... 35

Ch. 95-9 ........................................ 58

95-903 .......................................... 57

95-1001 .................................... 58, 59,60

95-1104 ........................................ 194

95-1504 ..................................... 58, 152 95-1509 ......................................... 29 95-1509, et seq................................... 28 95-1605 ......................................... 58 95-1610 . ....................................... 290 95-1633 ........................................ 151 95-1701 ......................................... 58

95-1710 ........ 58,59 95-1715 ......................................... 58

95-1901 ......................................... 57 95-1909 .................................... 57, 59, 60 95-2304 ........................................ 472 Ch. 95-27 ....................................... 15 95-9922 ......................................... 35 97-102 ......................................568, 569 97-104 ......................................... 569 97-105 ......................................... 569 97-106 ......................................... 569

97-107 ......................................... 569 Ch. 98-2 ........................................ 92 99-104 ......................................... 382 99-106 ......................................... 382 99-146 ............................... 410, 412,413,414 Ch. 99-2 ....................................... 267 99-201, et seq................................... 382

99-202 .................................. 266, 307' 597 99-203 ......................................265, 266

99-204 ......................................... 392 92-901, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 690

Ch. 92-1 5 ................ - . . . . . . . . . . . . . . . . . . . . . . 23 9

92-1501, et seq..................................... .1

92-1503 ....................................... 21, 43

797
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

92-1506 ....................................... 43

92-1508 ...................................... 477

92-1511 ........................................ 1

92-1518 ....................................... 20

92-2214 ....................................... 91

92-2217 ....................................... 91

92-2406 . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... 298 92-2701 ....................................... 92 92-2901 ...................................... 341 92-2902 ...................................... 341 92-2903 ...................................... 341 92-3002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 183' 184 92-3101 ............. ., . . . . . . . . . . . . . . . . . . . . . . . . 184

92-3102 ................... ' .................. 184 92-3103 ................................... 183, 184 92-3105 . . . . . . . . . . . . . . . . . . . . . . 81, 183,535,536, 537,538 92-3107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 92-3111 ...................................... 389 92-3113 ...................................... 138 92-3303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 538

92-3401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 734 92-3404 .................................... 734 Ch. 92-34A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115, 336 92-3402a ............................ 116, 547, 593 92-3403a ......................... 116, 336, 561, 593 92-3448a ......................................... 116 92-3812 ......................................... 563 92-3913 ........................................ 175 92-3914 ........................................ 175 Ch. 92-40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 92-4003 ....................................... 299 92-4701 ....................................... 239 92-4901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51' 54 92-5301 ........................................ 239 92-5304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 567 92-5305 . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . : .... 240 92-5703 .................................... 168 92-6206 .................................... 494 92-6209 .................................... 494 92-6211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 92-6405 ................................... 286 92-6601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-. : ..... 129

798
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

Ch. 92-69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535

92-6903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

92-6907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .324, 355

92-6911 .................................... 535

92-6912 ................................ .357, 358

92-6913 ........................................ 129

92-7012 ........................................ 552

92-7013 ........................................ 553

Chs. 92-73 to 92-83 .............................. 245

92-7401 ........................................ 477

92-7601 ........................................ 477

92-7602 ........................................ 389

Title 92A ....................................270, 469 Chs. 92A-1 to 92A-5 ...................... 280, 283, 284

92A-226 ................................... 274 92A-239 ................................. 264, 371, 650

92A-247 ........................................ 352

Ch. 92A-4 ...................................... 469

92A-401 ........................................ 273

92A-411 .................................... 11, 12,13

92A-435 ........................................ 208

92A-436 ........................................ 209

92A-501 ........................................ 468

92A-502 .....................................283, 495

92A-505 ................................. 281, 283, 285

92A-506 ................................. 281, 283, 285

92A-509 ........................................ 469

Ch. 92A-6 ...................................... 469

92A-604 ........................................ 264

92A-605 .................................. 55, 614, 615

92A-606 .....................................615, 733

92A-607 ........................................ 733

92A-608 . ................................ 350, 351, 352 Ch. 92A-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

92A-802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Ch. 95-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

99-206 .................................235, 382

99-207 .................................... 383

99-209 ............................. 382, 383, 384

99-211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597

99-213 ...................................... 7

99-214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

799
GEORGIA CODE ANNOTATED SECTIONS -Continued

CODE SECTIONS

PAGE

99-216 .......................... 234, 308, 383, 598

99-221 ........... : . . . . . . . . . . . . . . . . . . . . . . . . 267

99-232 .................................... 233

99-503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .324, 616

99-601, et seq. . . . . . . . . . . . . . . . . . . . . . . . , ....... 617

99-701, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

99-901, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

99-911a .................................... 623

99-932a .................................... 623

99-1402 .................................... 712

99-1404 .................................... 712

99-1417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713

99-2001, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

99-2901, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

99-2903 .................................617, 620

100-101 ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434

100-104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

100-105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

100-108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 71

102-102 . . . . . . . . . . . 12, 29, 33, 154, 235, 266,309,311, 323,

350,373,401,406,412,423,464,480,

577,598,607,616,626

102-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444,445,464

102-104 .................................... 654

102-106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .692, 693

105-701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

105-702 ........... .' . . . . . . . . . . . . . . . . . . . . . . . . 238

108-203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

108-210 ..................................... 80

Ch. 108-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

108-602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

109A-2-312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

109A-3-106 ................................. 530

109A-3-107 ................................. 530

Ch. 109 A-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

109 A-9-310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584

Ch.111-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Ch.111-5 ................................123,145

113-901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

113-1232, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502

114-101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322, 323, 514

114-1 07 . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 515

801
INDEX
PAGE
ACCIDENT AND SICKNESS INSURANCE. Franchise accident and sickness policy, how paid ....... 464
ACCOUNTANTS. Audits of cities and counties . . . . . . . . . . . . . . . . . . . . . 50
AD VALOREM TAXES. Arbitration ................................ 357 Boundary line of counties, where returns made when property crosses . . . . . . . . . . . . . . . . . . . . . . . 493 British subjects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Farm land, relevancy of crop allotments ............. 689 Motor vehicles . . . . . . . . . . . . . . . . . 1, 20, 43, 97, 173, 239 Executions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 Property subject to school taxation ................ 646 Rabun Gap-Nacoochee School, property of . . . . . . . . . . . 141 Savings and loan associations . . . . . . . . . . . . . . . . . . . . 167 Site of Property subject . . . . . . . . . . . . . . . . . . . . . . . . 646 Time of liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Transfer of tax executions ...................... 389 Voluntary payment of, when recovery back allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563
ADVERTISEMENTS. Highways, outdoor advertising adjacent to . . . . . . . . . . . 683 Industry and Trade, Department of, cooperative advertising with private industry . . . . . . . . . . . . . . . . 739 Official organ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 Outdoor, regulation .......................... 176
AGE OF PERSONS. Voters ............................... .329, 353
AGED PERSONS. Homestead exemption ......................... 46
AGRICULTURE, DEPARTMENT OF. Protective smocks purchased for use by employees inspecting plants, markets, etc. . ................ 114
AIR QUALITY CONTROL. Reports, filing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
ALABAMA POWER COMPANY. Property tax returns . . . . . . . . . . . . . . . . . . . . . . . . . . 186
ALCOHOLIC BEVERAGES. See Intoxicating Liquors.
AMBULANCE SERVICE. Constitutional provisions as to providing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 County subsidizing ............................ 396

802

INDEX

PAGE

AMENDMENTS. Constitution, toFailure to publish .......................... 694 Rate to publishers for publishing ................ 697 Sentences .......................... 120, 197, 202
AMERICAN SAVINGS AND LOAN LEAGUE, INC. Issuance of name certificate ..................... 657
AMERICUS, CITY COURT OF. Judge, compensation ......................... 214
ANNECWAKEE FOUNDATION, INC. Sales taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
APPEALS. Capital felony convictions from, duties of Attorney General .......................... 209
APPROPRIATIONS. Anticipated revenue from new taxes ............... 602 General Assembly, bill before . . . . . . . . . . . . . . . . . . . . . 10
ARBITRATION. Ad valorem taxes ............................ 357
ARRAIGNMENT. Notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARREST. Uninterrupted pursuit ......................... 735
ART COMMISSION, GEORGIA. Consultants, funds for .......................... 30
ASSIGNED RISK PLAN. Motor vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ATHENS, CITY COURT OF. Solicitor, vacancy in office of .................... 446
ATLANTA CHILDREN AND YOUTH SERVICE COUNCIL. Governor's emergency fund ..................... 304
ATTORNEY GENERAL. Capital felonies, duties in handling appeals from convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
AUCTIONEERS. Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 9
AUDITS. Counties and cities, of . . . . . . . . . . . . . . . . . . . . . . . . . . 50
AUGUSTA, CITY OF. Military service, paid vacation for employees in addition to leave for . . . . . . . . . . . . . . . . . . . . . . . . 103
BAKER COUNTY. Consolidation of militia districts .................. 218

INDEX

803
PAGE

BALLOTS. Sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
BANKRUPTCY. Motor Vehicle Safety Responsibility Act, effect of adjudication as to . . . . . . . . . . . . . . . . . . . . . . . . . 55
BANKS AND BANKING. DepositsPledge of assets to secure . . . . . . . . . . . . . . . . . . . . . 311 Unclaimed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 Recording taxes ............................. 154 Regulated certificated bank's eligibility as a depository for public funds ................... 434 Taxation of bank stock ........................ 298
BAXLEY, CITY OF. Charter revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
BEER. Municipal ownership of store . . . . . . . . . . . . . . . . . . . . 145
BERRIEN COUNTY. County commissioners, validity of bill increasing number of . . . . . . . . . . . . . . . . . . . . . . . . 140
BIBB COUNTY. Board of Public Education and Orphanage for, referendum on amendment to act establishing ............... 663
BIDS. State, to, refund of deposit included ............... 134 Textbooks ................................ 429
BLOOD EXAMINATIONS. Consent not give, where . . . . . . . . . . . . . . . . . . . . . . . 252 Implied consent ...................... 313, 366, 544
BLOOD-GROUPING TESTS. Paternity, to determine ........................ 719
BONDS. Highway requirements for payment bonds . . . . . . . . . . . 499 Hospital authority bonds as affecting bonding capacity of county . . . . . . . . . . . . . . . . . . . . . . . . . 41 7 Motor vehicle certificate of title . . . . . . . . . . . . . . . . . . 659 Municipal, sinking fund . . . . . . . . . . . . . . . . . . . . . . . . 231 Pest control, approval . . . . . . . . . . . . . . . . . . . . . . . . . 526 Retail liquor dealers bond . . . . . . . . . . . . . . . . . . . . . . 651 School bonds, issuance by county board of education ............................... 519 School principals . . . . . . . . . . . . . . . . . . . . . . . . .359, 511
BORROWING. Schools, by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 224

804

INDEX

PAGE

BOUNDARIES. Militia districts, change . . . . . . . . . . . . . . . . . . . . . . . . 321 Sentorial District, 37th ........................ 418 States, between ..........................258, 348
BOWLING MACHINES. Legality of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
BRAKE FLUID. Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
BRIDGES. Maintenance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
BROOKS COUNTY. Tax proceeds to development authority ............. 465
BUDGET BUREAU, STATE. Appropriation of anticipated revenue from new taxes .................................. 602
BUDGETS. Superior courts and solicitors general ............... 622
BUILDING AUTHORITY, GEORGIA. Vending Stand Act, buildings subject to provisions of .................................... 204
BUILDING AUTHORITY (HOSPITAL), GEORGIA. Veterans Service Department, agreement for use of hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 0
BUTTS COUNTY. School superintendent, requirements ............... 528
CAPITAL FELONIES. Appeals, duties of Attorney General ............... 209
CAPITAL PUNISHMENT. Jurors objecting to ........................... 715
CARROLLTON, CITY COURT OF. Judge, retirement ............................ 517
CEMETERIES. Interment rights, real estate transfer tax . . . . . . . . . . . . . . 95
CENTRAL STATE HOSPITAL. Prisoners at . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 112 Records of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
CERTIFIED PUBLIC ACCOUNTANTS. Audits of cities and counties .................... 50
CHATHAM COUNTY PHOSPHATE LEASE. Proposed ................................. 495
CHAUFFEURS. Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

INDEX

805 PAGE

CHECKLESS PAYROLL PLAN. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
CHECKS. Bad checks for motor vehicle tag and taxes . . . . . . . . . . . 244
CHILDREN AND YOUTH, STATE BOARD OF. State employee as member of . . . . . . . . . . . . . . . . . . . . 321
CHRISTMAS TREES. Franchises ................................ 325
CHURCHES. Intoxicating liquors law, measuring distances for purposes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
CIGARETTES. Interstate purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
CITY COURT OF ATHENS. Solicitor, vacancy in office of . . . . . . . . . . . . . . . . . . . . 446
CITY COURT OF CARROLLTON. Judge, retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517
CIVIL AIR PATROL. State aid to Georgia wing of . . . . . . . . . . . . . . . . . . . . . 560
COBB COUNTY. Leash law, authority of commissioners to enact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
COLLECTIVE BARGAINING. Public employees, by . . . . . . . . . . . . . . . . . . . . . . 94, 556
COMMON CARRIERS. Sales taxes where engaged in interstate commerce . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 561
CONFIDENTIAL INFORMATION. Prisoners, information furnished by, as to wrongdoing in corrections system ........................ 222
CONFLICT OF INTERESTS. Education board employee as member of board . . . . . . . . 719 General Assemblyman filling contracts entered into with State prior to election . . . . . . . . . . . . . . . . . ... 730 Public offiers and employees . . . . . . . . . . . . . . . . . 65, 187
CONSANGUINITY. Marriage, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
CONSENT. Blood examinations . . . . . . . . . . . . . . . . 252, 313,366,544
CONSTABLES. Appointment ...........................708, 736 Justice of the peace, also acting as . . . . . . . . . . . . . . . . . 650 Traffic, regulating ............................ 466

806

INDEX

PAGE

CONSTABLES-Cont'd. Warrants, fees for serving . . . . . . . . . . . . . . . . . . . . . . . 466 Write-in candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
CONSTITUTIONAL LAW. Amendment, proposedFailure to publish .......................... 694 Rate to publishers for publishing . . . . . . . . . . . . . . . . 697 Law Department's authority to pass on constitutionality of statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611 Supremacy over election law of Constitution where conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 0
CONVICTION OF CRIME. Elective franchise of offender, resulting civil disabilities as to . . . . . . . . . . . . . . . . . . . . . . . . 502 Employment by public entity, effect as to ........... 394
CONVICTS. See Prisons and Prisoners.
COOSA VALLEY AREA VOCATION AND TECHNICAL SCHOOL.
Contract with State Board for Vocational Education .... 524 CORPORATIONS.
"American Savings and Loan League, Inc.," issuance of name certificate . . . . . . . . . . . . . . . . ., ........ 657
Charters, fees for certified copies . . . . . . . . . . . . . . . . . 400 Subsidiary corporation, real estate conveyance,
taxation ................................ 680 CORRECTIONAL INSTITUTIONS.
Convicted persons hired by ..................... 394 CORRECTIONS, STATE BOARD OF.
Accounts of inmates, closing . . . . . . . . . . . . . . . . . . . . 217 Federal prisoner, contract for incarceration of ......... 102 Georgia Industrial Institute, purchase of realty
for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533 Hospitalization, costs of . . . . . . . . . . . . . . . . . . . . . . . 169 Identification lineups ......................... 442 Mentally diseased inmates, examination of ........... 162 Traffic cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 COUNTIES. Ambulance service subsidizing . . . . . . . . . . . . . . . . . . . 396 Audits of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Detention centers, funds for . . . . . . . . . . . . . . . . . . . . . 593 Diseased livestock, funds and equipment used in
disposing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

INDEX

807 PAGE

COUNTIES-Cont'd. Grants from State, State property valued in determining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Hospital authority bonds as affecting bonding capacity of county ......................... 417 Tax anticipation notes as collateral for State deposits .................................. 2 Tax proceeds to development authority ............. 465
COUNTY COMMISSIONERS. Elected county-wide where district residency requirements ............................. 542 Election ............................... 9, 47, 291 Election to determine public opinion, expenditure of funds to conduct ......................... 88 Eligibility of candidates . . . . . . . . . . . . . . . . . . . . . . . . 476 Lease agreement extending beyond expiration of term of office of single county commissioner . . . . . . . . . . . . . 700 Probation officer, chairman of board employed as ....... 22 Residence requirements . . . . . . . . . . . . . . . . . . . . . . . . 384 Tax assessors, sitting with . . . . . . . . . . . . . . . . . . . . . . 535 Tax commissioner also serving as . . . . . . . . . . . . . . . . . . 324
COURT OF APPEALS. Judge's candidacy as affecting emeritus status .................................. 245
COURT REPORTERS. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . .415, 651
CRIME LABORATORY, STATE. Employees as witnesses . . . . . . . . . . . . . . . . . . . . . . . . 756
CROSSINGS. Railroad crossing, responsibility for maintaining road surface next to wooden railroad ties .............. 606
DAY-CARE CENTERS. Kindergartens .............................. 265
DEATH. Candidate, of, before primary .................581, 583
DEBTS. Schools, public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
DEEDS. Collateral paper, effect ........................ 564
DEKALB COUNTY. Education board's authority to build four-year college . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548
DEKALB JUNIOR COLLEGE. Funds for .................................. 548

808

INDEX

PAGE

DEPOSITORIES, PUBLIC. Regulated certificated banks .................... 434
DEPOSITORIES, STATE. Securities, minimum amount of . . . . . . . . . . . . . . . . . . . 71
DETAINER ACT. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 421, 509, 515
DETAINERS. Applicability of law to detainers filed prior to effective date of Act based upon uncompleted sentence . . . . . . . . . . . . . . . . . . . . . . . 755 Requests from prison officials of county for return of state prisoner . . . . . . . . . . ............ 734
DETENTION CENTERS. Counties, funds for . . . . . . . . . . . . . . . . . . . . . . . . . . . 593
DEVELOPMENT AUTHORITY. County proceeds to . . . . . . . . . . . . . . . . . . . . . . . . . . 465
DEVELOPMENT CORPORATIONS. Income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
DISEASED LIVESTOCK. County funds and equipment used in disposing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
DISTRICT ATTORNEYS. See Solicitors General.
DOCUMENTARY TAXES. Local education boards to Georgia Education Authority (Schools), transfers from . . . . . . . . . . . . . . . . . . . . . . 82
DOOLY COUNTY. Forestry unit headquarters, disposal of realty used for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
DRILLING, Private property, on, at State expense .............. 580
DRIVER TRAINING SCHOOLS. Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .353, 390
DRIVERS' LICENSES. Chauffeulls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Military service, where in . . . . . . . . . . . . . . . . . . . . . . . 208 Revocation for driving under influence . . . . . . . . . . . . . . 349 Veterans .................................. 267
DRUNKEN DRIVING. Drivers' license revocation ...................... 349
EASEMENTS. Highways, acquired for, divesting . . . . . . . . . . . . . . . . . 728

INDEX

809 PAGE

EAVESDROPPING DEVICES. Generally ................................. 752.
EDUCATION. Military bases, for children who reside on . . . . . . . . . . . . 676
EDUCATION AUTHORITY (SCHOOLS), GEORGIA. Documentary taxes on transfers to . . . . . . . . . . . . . . . . . 82
EDUCATION, COUNTY BOARDS OF. Athletic uniforms, funds for . . . . . . . . . . . . . . . . . . ... 414 Band uniforms, funds for . . . . . . . . . . . . . . . . . . . . . . . 414 Bonds, issuance of . . . . . . . . . . . . . . . . . . . . . . . . . .. 519 Employees not to serve as member of . . . . . . . . . . . . . . 719 Excess funds collected for . . . . . . . . . . . . . . . . . . . . . . 531 Four-year college, authority to build . . . . . . . . . . . . . . . 548 General Assembly, employee offering for seat in ....... 207 Georgia State professor as member of . . . . . . . . . . . . . . 206 Governing authority for county school system ......... 668 Registrars board member also serving on . . . . . . . . . . . . . 567 Tax digest preparation . . . . . . . . . . . . . . . . . . . . . . . . 500 Teacher serving as member of . . . . . . . . . . . . . . . . . . . . . 33 Terms of members ........................... 520
Transfers of realty to Georgia Education Authority (Schools), taxation ................... 82
Travel expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 7 Zoning appeals board member serving as member of ..... 186 EDUCATION, STATE BOARD OF. Appeals to, authority as to . . . . . . . . . . . . . . . . . . . . . . 501 Contracts for or on behalf of students of schools,
regulation of ............................. 326 Scholarship agreements, enforcement of ............. 528 EDUCATION, STATE DEPARTMENT OF. Funds, transfer of ............................ 42 EFFINGHAM COUNTY.
County commissioner, eligibility for office of .................................... 476
ELECTIONS. Absentee ballots . . . . . . . . . . . . . . . . . . . . . . . . . 101, 321 Primaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408 Absentee names, right to copy list of . . . . . . . . . . . . . . . 655 Absentee voters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 BallotsAbsentee ......................... 101,321,408 Sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

810

INDEX

PAGE

ELECTIONS-Cont'd. Campaigning at polls . . . . . . . . . . . . . . . . . . . . . . . . . . 450 CandidatesBusiness address, using . . . . . . . . . . . . . . . . . . . . . . . 418 Convention to nominate . . . . . . . . . . . . . . . . . .452, 455 Death before primary . . . . . . . . . . . . . . . . . . . .581, 583 Eligibility, see specific office. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Emeritus status, candidacy as affecting . . . . . . . . . . . . 245 Income tax evasion, guilty of . . . . . . . . . . . . . . . . . . 127 Last date for qualifying by nomination petition ...... 312 Nomination by parties ........................ 48 Nomination petition, see Nomination petitions, post. Notice of candidacyNomination petition, with .................. 293 Write-in candidates . . . . . . . . . . . . . . . . . . . . . . . 615 Polls, campaigning at . . . . . . . . . . . . . . . . . . . . . . . . 450 Qualification ............................. 505 Qualifying fee . . . . . . . . . . . . . . . . . . . . . . . . . 161, 297 Qualifying, time . . . . . . . . . . . . . . . . . . . . . . . . 83, 129 Registrars, also member of board of . . . . . . . . . . . . . . 567 State employees ........................... 356 Write-in candidates . . . . . . . . . . . . . . . . . . . . . .507, 585 Incumbent as . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 Notice of candidacy ....................... 615 Constitution prevailing over election law where conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 0 Convention to nominate candidates ............ .452, 455 Conviction of crime as affecting elective franchise ................................ 502 County commissioners . . . . . . . . . . . . . . . . . . . . 9, 47, 291 County-wide election where district residency requirements ............................. 542 Election districts, application of 1965 Voting Rights Act to changing of . . . . . . . . . . . . . . . . . . . . . 676 Industry and Trade board member running for county office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Intoxicating liquorsConflict with Revenue Tax Act . . . . . . . . . . . . . . . . . 610 Petition ................................ 457 List of electors, action taken where outdated . . . . . . . . . 117

INDEX

811
PAGE

ELECTIONS-Cont'd. Majority required to win . . . . . . . . . . . . . . . . . . . . . . . 525 NominationConvention, by ....................... .452, 455 Parties, by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Substitute ............................... 583 Nomination petitionsCosts in examining . . . . . . . . . . . . . . . . . . . . . . . . . 312 Last date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 Notice of candidacy with .................... 293 Signatures required ......................... 309 "One man, one vote," . . . . . . . . . . . . . . . . . . . . . .166, 181 Ordinary's fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 Political parties, see Primaries, post. Nominations by ............................ 48 Qualification fees . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Polling placesApplication of 1965 Voting Rights Act to changing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676 Campaigning at . . . . . . . . . . . . . . . . . . . . . . . . . . . 450 Creating additional . . . . . . . . . . . . . . . . . . . . . . . . . 331 Primaries ................................ 354 Signatures on petition for referendum sought
within certain distance of ................... 525 Time for opening and closing . . . . . . . . . . . . . . . . . . 312 Two in one election
district ................................ 79 Primaries-
Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Death of candidate before .................581, 583 Municipal elections . . . . . . . . . . . . . . . . . . . . . . . . . 462 Only one candidate, where .................... 462 Polling places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 Separate polling places for different political
parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484 Special election on day of . . . . . . . . . . . . . . . . . . . . 481 Public opinion, to determine . . . . . . . . . . . . . . . . . . . . . 88 Recall elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Registrars boardCandidate also member of . . . . . . . . . . . . . . . . . . . . 567
Political party executive committee member serving on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683
Registration cards, signatures . . . . . . . . . . . . . . . . . . . . 171

812

INDEX

PAGE

ELECTIONS-cont'd.
Registration of electorsAge requirements . . . . . . . . . . . . . . . . . . . . . . .329, 353 Challenges to elector's qualifications . . . . . . . . . . . . . 285 Domicile, place of . . . . . . . . . . . . . . . . . . . . . ; .... 630 Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481 Residence requirements . . . . . . . . . . . . . . . . 84, 242, 523 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Transfer from one election district to another ....... 292
Runoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Special elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Held when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Ordinaries' duties as to . . . . . . . . . . . . . . . . . . . . . . 131 Special primary on day of primary . . . . . . . . . . . . . . . . 481 Special, tax commissioners . . . . . . . . . . . . . . . . . . . . . . 239 State Election Board appointing superintendent ............................ 754 Superintendent's appointment where no current elected officials . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 Time for voting ............................. 587 Vacancies, special elections . . . . . . . . . . . . . . . . . . . . . . 37 Vote recorders, use of . . . . . . . . . . . . . . . . . . . . . . . . . 235 Votes- Majority required to win . . . . . . . . . . . . . . . . . . . . . 525 Write-in . . . . . . . . . . . . . . . . . . . . . . . . . . . . .585, 621 Voting, time for ............................. 587 Votomatic machines . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Write-in candidates . . . . . . . . . . . . . . . . . . . . . . . .507, 585 Incumbent as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 Notice of candidacy . . . . . . . . . . . . . . . . . . . . . . . . 615 Write-in votes, . . . . . . . . . . . . . . . . . . . . . . . . . . .585, 621
EMERITUS OFFICERS.
Candidacy as affecting emeritus status . . . . . . . . . . . . . . 245 Solicitors general . . . . . . . . . . . . . . . . . . . . . . . . .228, 497 Superior court judges ........ 477,485,500, 555,613,757
EMPLOYEESOF STATE.
Collective bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . 556 Elective county office, holding . . . . . . . . . . . . . . . . . . . 473

INDEX

813 PAGE

EMPLOYEES OF STATE-Cont'd. Insurance policy covering, approval of endorsement ............................. 748

Maintenance allowances ....................... 439

State board, employee also acting as

member of .............................. 547

Suspension of non-merit system employee, legality of

payment of salary during period of

0

0

0

0

0

0

0

0

0

0

0

0

0

0 667

EMPLOYEES' RETIREMENT SYSTEM. Application for involuntary separation .............. 157 Assignment of rights .......................... 346 Employer's contributions included in department's biennium budget . . . . . . . . . . . . . . ... 65 5
EMPLOYERS AND EMPLOYEES. Checkless payroll plan . . . . . . . . . . . . . . . . . . . . . . . . . 356
EMPLOYMENT AGENCIES.

Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Private, operation of . . . . . . . . . . . . . . . . . . . . . . . . . . 625 ESCHEAT. Recipient of escheated property . . . . . . . . . . . . . . . ... 193 ESTATE TAXES.

Duty to file and pay . . . . . . . . . . . . . . . . . . . . . . . . . . 733 ESTATES FOR YEARS.
Conveyance, real estate transfer tax . . . . . . . . . . . . . . . . 690 Homestead exemption . . . . . . . . . . . . . . . . . . . . . . . . 127 EVIDENCE. Transcript of evidence, right of convicted defendant
to, without cost . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 EXCISE TAXES.
Wines, cooking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 EXECUTIONS.
Motor vehicle ad valorem taxes, on . . . . . . . . . . . . . ... 477 Recorded, priorities .......................... 114 Transfer of tax executions ...................... 389 EXTRADITION. Payment for services involved in . . . . . . . . . . . . . . . . . . 100 FAMILY AND CHILDREN SERVICES, COUNTY
BOARDS OF. Members-
Candidate for county commission ............... 324 Relatives receiving benefits . . . . . . . . . . . . . . . . . . . . 616 FAMILY AND CHILDREN SERVICES, STATE DEPARTMENT OF. Detentwn centers, funds for ..................... 593

814

INDEX

PAGE

FAMILY AND CHILDREN SERVICES, STATE DEPARTMENT OF-Cont'd.
Pilot projects, funds for ... -. . . . . . . . . . . . . . . . . . . . . 409 Social Security law . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Transportation expenses where persons sent to
State institutions .......................... 488 Youth development centers, transfer of
students to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 FARMERS MARKETS.
Rock excavation, compensation for . . . . . . . . . . . . . . . . . 25 FEDERAL GOVERNMENT.
Medicaid program . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 FEED ADDITIVES.
Taxation ................................. 336 FELONIES.
Appeals, duties of Attorney General ............... 209 FINES.
Traffic cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 FIRE MARSHAL, STATE.
Molotov Cocktail Act . . . . . . . . . . . . . . . . . . . . . . . . . 451 FIREMEN'S PENSION FUND.
Applications, interest on contributions .............. 504 Fire alarm dispatchers as members of . . . . . . . . . . . . . . . . 61 FIREWORKS. Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Shipped and stored in Georgia . . . . . . . . . . . . . . . . . . . . 98 FLOYD COUNTY. Alabama Power Company property tax return ......... 186 FOREST RESEARCH COUNCIL, GEORGIA. Agreement for exchange of technical publications
with Scientific and Technical Information Center at University of Havana . . . . . . . . . . . . . . . . . 193 Grants for research . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Uniforms, funds for . . . . . . . . . . . . . . . . . . . . . . . . . . 274 FORESTERS, STATE BOARD OF REGISTRATION FOR. Grandfather clause in licensing statute . . . . . . . . . . . . . . 612 Written examination of applicants for registration ...... 558 FORESTRY. Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 FORESTRY UNITS. Realty, disposal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 FORT YARGO STATE PARK. Penal laws enforcement within . . . . . . . . . . . . . . . . . . . 549

INDEX

815 PAGE

FRANCHISE ACCIDENT AND SICKNESS INSURANCE. How policy paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
FRANCHISES. Christmas trees ............................. 325
FUND RAISING, PROFESSIONAL. Olympic teams, for . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
FUNERAL DIRECTORS. Post mortem examinations, duties where person dies under circumstances which would require .......... 420
GAMBLING. Pinball and bowling machines . . . . . . . . . . . . . . . . . . . . . 61
GAME AND FISH COMMISSION, STATE. Regulation removed from place of posting, effect .................................. 156
GARNISHMENT. State college, against . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
GENERAL ASSEMBLY. Adjournment, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Appropriations bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Education board employee offering for seat in ......... 207 Newly elected member continuing fulfillment of State contracts ............................ 730
GEORGIA POWER COMPANY. Highway Department force account agreement with ....... 1
GIFT ENTERPRISES. Generally .......................... 504, 641, 702 Promotional schemes . . . . . . . . . . . . . . . . . . . . . . . . . 160 Trading stamps ............................. 689
GLUE. Inhaling of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
GOVERNMENT. Representative form as affected by reapportionment cases . . . . . . . . . . . . . . . . . . . . . . . 672
GOVERNOR. Emergency fund, Atlanta Children and Youth Service Council . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
GRADY COUNTY. Education board, election, "one man, one vote" rule ............................... 166
GRANDFATHER CLAUSES. Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121, 612
GREENE COUNTY. Forestry unit headquarters, disposal of realty used for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

816

INDEX

PAGE

HAVANA, UNIVERSITY OF. Forest Research Council agreement for technical publications exchange with Scientific and Technical Information Center at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
HAWKINSVILLE BOARD OF EDUCATION. Audit report ............................... 557
HEALTH AND ACCIDENT INSURANCE. Sale of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588
HEALTH, DEPARTMENT OF PUBLIC. Radiation control, regulatory power as to ............ 431
Septic tanks, rules and regulations as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
HIGHWAY DEPARTMENT, STATE. American Society for Testing and Materials, contract with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Deed, effect of collateral paper on validly executed ................................ 564 Drainage structures, funds for . . . . . . . . . . . . . . . . . . . . 152 Georgia Power Company, force account agreement with ..................................... 1 Junkyard, prohibiting creation of . . . . . . . . . . . . . . . . . . 15 Mining operator agreeing to maintain roads ........... 578 Outdoor advertising, regulation of . . . . . . . . . . . . . . . . . 176 Overheight permits ........................... 260 Parking on State right-of-way, authority as to .......... 34 Payment bonds ............................. 499 Records, inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 741 Rental of surplus buildings . . . . . . . . . . . . . . . . . . . . . . 471 Supplemental and extension agreements . . . . . . . . . . . . . 151 Utility relocation, reimbursement for . . . . . . . . . . . .339, 601 Water distribution and sanitary sewer facilities, reimbursement for relocating . . . . . . . . . . . . . . . . . . . 27
HIGHWAY SAFETY CONTRACT. Validity of ................................ 362
HIGHWAYS. Annexation by municipalities .................... 289 Easement acquired by State, divesting . . . . . . . . . . . . . . 728 Outdoor advertising adjacent to . . . . . . . . . . . . . . . . . . 683 Rights-of-way, solicitation of business by wrecker or ambulance service . . . . . . . . . . . . . . . . . . . . . . . . 150 Speed laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402

INDEX

817 PAGE

HISTORICAL MARKER SITE. Whitfield County . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590
HOMESTEAD EXEMPTIONS. Aged persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Estates for years ............................ 127 Motor vehicle ad valorem taxes delinquent, levy on home to satisfy . . . . . . . . . . . . . . . . . . . . . . . . . 173 Widows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
HORSE RACING. Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
HOSPITAL AUTHORITIES. Ambulance service, county subsidizing . . . . . . . . . . . . . . 396 Bonds of authority as affecting bonding capacity of county ......................... 417
HOSPITALS. Mentally ill persons hospitalized upon court order .................................. 540
HOUSING LAW, FEDERAL. Effect, etc................................. 278
HUlET, BENT. & SONS, INC. Leases with State Department of Labor, investigation ............................. 630
IDENTIFICATION. Lineups in facilities operated by State Board of Corrections ............................ 442
IMPLIED CONSENT. Blood examinations . . . . . . . . . . . . . . . . . . . 313, 366, 544
INCOME TAXES. Bank holding company in another State, stock owned by Georgia resident in . . . . . . . . . . . . . . . . . . . . . . . 693 Development corporations ....................... 80 Investment trust ............................ 182 Out-of-State financial institutions . . . . . . . . . . . . . . . . . 138 Out-of-State transactions ....................... 545 Out-of-State university employees ................. 387 Unrelated business income of tax exempt corporation .... 535
INDUSTRIAL INSTITUTE, GEORGIA. Purchase of realty for . . . . . . . . . . . . . . . . . . . . . . . . . 533
INDUSTRY AND TRADE, DEPARTMENT OF. Advertising with private industry, cooperative ......... 739 Board of CommissionersHonorary consul in Atlanta, member also serving as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 4

818

INDEX

PAGE

INDUSTRY AND TRADE, DEPARTMENT OF-Cont'd. Board of Commissioners-Cont'd. Member running for county office . . . . . . . . . . . . . . . . 15 Putnam County Dairy Festival, contract as to .......... 93
INSANITY. Convicts, disposition of insane . . . . . . . . . . . . . . . . . . . 443 Hospitalization upon court order ................. 540
INSPECTIONS. Motor scooters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 0 Records, public . . . . . . . . . . . . . . . . . . . . . . . . . .727, 741
INSURANCE. Automobile assigned risk plan . . . . . . . . . . . . . . . . . . . . 18 Employee disability benefit plan, interstate business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Franchise accident and sickness policy, how paid ................................... 464 "In time of war" provision . . . . . . . . . . . . . . . . . . . . . . . 26 Reinsurer, Small Business Administration as .......... 262 Unclaimed funds ............................ 666
INSURANCE COMMISSIONER. Sale of insurance, powers as to . . . . . . . . . . . . . . . . . . . 588 State employees, covering, approval of endorsement ..... 748
INTANGIBLES TAX Bank holding company in another State, stock owned by Georgia resident in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693 Citizens of Georgia owning stock outside State of Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Exemptions ............................... 338 Long term notes secured by real estate ...........591, 716 Mutual funds, shares in . . . . . . . . . . . . . . . . . . . . . . . . 240 United States Series E Savings Bonds . . . . . . . . . . . . . . . 240
INTEREST. Rates on loans permitted ....................... 576
INTERSTATE AND PRIMARY SYSTEM OF HIGHWAYS. Advertising adjacent to . . . . . . . . . . . . . . . . . . . . . . . . 683
INTERSTATE COMMERCE. Cigarette purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Common carrier engaged in, sales taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 Employee disability benefit plan ................................... 286

INDEX

819
PAGE

INTERSTATE COMPACTS. Boundaries in territorial sea . . . . . . . . . . . . . . . . . . . . . 258
INTOXICATING LIQUORS. Churches, measuring distances of stores from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Contraband, disposition of ....................... 99 Dealers bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 651 Elections, conflict with Revenue Tax Act ............ 610 Municipal ownership of beer and wine store . . . . . . . . . . 145 Petition for election ........................ 5, 457 Referendum procedures . . . . . . . . . . . . . . . . . . . . . . . 143 Taxation of wine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 Taxpaid crowns, loss of, responsibility for . . . . . . . . . . . . 68 Wines, cooking, excise taxes . . . . . . . . . . . . . . . . . . . . . . 22
INTOXICATION. Glue inhaling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
INVESTMENT TRUSTS. Income taxes ............................... 182
JEFF DAVIS COUNTY. County commissioners, residence requirements ........ 384
JONES COUNTY. Election of county commissioners . . . . . . . . . . . . . . . . . . 47
JUDGMENTS. Oyster bed lease subject to sale in satisfaction of ............................. 95
JUNKYARDS. Generally .................................. 69 Highway Department prohibiting creation of . . . . . . . . . . . 15 Trial by jury, ordinance violations, ................ 747
JURIES. Capital punishment, persons objecting to ............ 715 Lists, names in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
JURISDICTION. Probated sentences ........................... 197
JUSTICES OF THE PEACE. Constable, also acting as . . . . . . . . . . . . . . . . . . . . . . . 650 Fees .................................132,209 Municipal police chief, also acting as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 1 OrdinariesAppointment by ........................... 743
Justices of the peace as candidates for . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

820

INDEX

PAGE

JUSTICES OF THE PEACE--Cont'd. Special elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Surveyor, county, also acting as . . . . . . . . . . . . . . . . . . 650 Write-in candidates . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
JUVENILE COURTS. Transcripts of proceedings . . . . . . . . . . . . . . . . . . . . . . 607
KINDERGARTENS. Day-care centers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
LABOR. Collective bargaining by public employees . . . . . . . . . . . 556 Teachers, collective bargaining . . . . . . . . . . . . . . . . . . . . 94
LABOR, STATE DEPARTMENT OF. Investigation of leases . . . . . . . . . . . . . . . . . . . . . . ... 630
LAND SYNDICATIONS. Securties Act, under .......................... 568
LAW, DEPARTMENT OF. Capital felony appeals, duties as to . . . . . . . . . . . . . . . . 209
Constitutionality of statutes, authority to pass on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611
LAZARRETA CREEK. Bridge over, right of way . . . . . . . . . . . . . . . . . . . . . . . . 32
LEASES. Chatham County phosphate lease, proposed .......... 495 Labor Department, investigation .................. 630 Long-term, real estate transfer tax . . . . . . . . . . . . . . . . . 757 Mineral properties, state-owned . . . . . . . . . . . . . . . . . . 165 Oyster bed lease subject to sale in satisfaction of judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Real estate transfer tax . . . . . . . . . . . . . . . . . . . . . . . . 189
LEGISLATURE. See Gen~ral Assembly.
LEVITICAL DEGREES. Marriage within . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
LEVY. Property subject to ........................... 194
LICENSES. Auctioneers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Driver training schools . . . . . . . . . . . . . . . . . . . . .353, 390 Drivers', see Drivers' Licenses. Employment agencies . . . . . . . . . . . . . . . . . . . . . . . . . 333 Grandfather clause . . . . . . . . . . . . . . . . . . . . . . . . 121, 612 Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Structural pest control ........................ 300

INDEX

821
PAGE

LICENSES--Cont'd. Surface Mining Act, licensing under . . . . . . . . . . . . . . . . 553 Surface mining operators ....................... 518 Surveyors, county ........................... 433 Used Car Dealers Registration Act, fees under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640
LIEN STATEMENT. Rehabilitation services, filed in connection with ................................... 490
LIENS. Motor vehicles, storage liens . . . . . . . . . . . . . . . . . .496, 584
LIFE INSURANCE. Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588
LIMITATION OF ACTIONS. Taxes, recovery of . . . . . . . . . . . . . . . . . . . . . . . . . . . 698
LINEUPS. Identification in facilities operated by State Board of Corrections .................... 442
LIVESTOCK. Diseased livestock, county funds and equipment used in disposing of . . . . . . . . . . . . . . . . . . . . . . . . . 212
LOANS. '
Interest rates permitted ........................ 576 LOTTERIES.
Generally .......................... 504,641,702 Promotional schemes . . . . . . . . . . . . . . . . . . . . . . . . . 160 Trading stamps ............................. 689 MACON, CITY OF. Taxes, authority to levy and collect . . . . . . . . . . . . . . . . 758 MACON COUNTY. Education board, excess funds . . . . . . . . . . . . . . . . . . . 531 MARRIAGE. Consanguinity .............................. 458 Levitical degrees, within . . . . . . . . . . . . . . . . . . . . . . . 458 License, in absence of valid . . . . . . . . . . . . . . . . . . . . . 169 MARRIED STUDENTS. School, attending ............................ 554 MALT BEVERAGES. Taxpaid crowns, loss of, responsibility for . . . . . . . . . . . . 68 MEDICAID PROGRAM. Federal government program, generally .............. 72 MEDICAL EXAMINERS. Nonresidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

822

INDEX

PAGE

MENTALLY ILL PERSONS. Convicts, disposition of insane . . . . . . . . . . . . . . . . . . . 443 Hospitalization upon court order ................. 540
MERIT SYSTEM FOR DEPARTMENTS. Parolee taking examination ...................... 37
MILITARY BASES. Education for children residing on ................. 676
MILITARY SERVICE. Drivers' licenses where in . . . . . . . . . . . . . . . . . . . . . . . 208 Public employees annual leave for . . . . . . . . . . . . . . . . . 103
MILITIA DISTRICTS. Boundaries, change . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Consolidation .............................. 218
MILLEDGEVILLE STATE HOSPITAL. See Central State Hospital.
MINERAL PROPERTIES. State, of, lease of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
MINERAL RIGHTS. Real estate transfer tax . . . . . . . . . . . . . . . . . . . . . . . . 479
MINES AND MINING. Licensing under Surface Mining Act . . . . . . . . . . . . . . . . 553 Roads, operator agreeing to maintain public .... ...... 578 Surface mining operators, licensing of .............. 518
MINES, MINING AND GEOLOGY, DEPARTMENT OF. Director's duties under Surface Mining Act . . . . . . . . . . . 480
MINIMUM FOUNDATION PROGRAM. Allotment of State funds ........................ 552 Annual calculation of local financial ability ........... 552
MOBILE HOMES. License plates used in transporting ................ 340
MOLOTOV COCKTAIL ACT. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
MONEY ORDERS. Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
MOTOR CARRIERS. Waiving registration fee under reciprocal arrangement .... 737
MOTOR SCOOTERS. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 0
MOTOR VEHICLE CERTIFICATE OF TITLE LAW. Bonds ................................... 659 Lien or secuity interest holder releasing or transferring certificate of title he holds before issuance of new certificate ............................... 665

INDEX

823 PAGE

MOTOR VEHICLE CERTIFICATE OF TITLE LAW-Cont'd. Perfection of security interests on titled vehicles ....... 592 Priorities under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Storage liens, where vehicles sold . . . . . . . . . . . . . . . . . 496 Wrecked vehicles, sale or disposal of . . . . . . . . . . . . . . . 660
MOTOR VEHICLE RESPONSIBILITY LAW. Security, furnishing . . . . . . . . . . . . . . . . . . . . . . . . . . 613
MOTOR VEHICLE SAFETY RESPONSIBILITY ACT. Bankruptcy adjudication, effect of . . . . . . . . . . . . . . . . . 55 Release in lieu of security as privileged matter ......... 732
MOTOR VEHICLES. Accidents on private property ................... 263 Ad valorem taxes, see Ad Valorem Taxes. Assigned risk plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Bad checks for tag and taxes . . . . . . . . . . . . . . . . . . . . 244 Brake fluid standards . . . . . . . . . . . . . . . . . . . . . . . . . 460 Drivers' licenses, see Drivers' Licenses. False statements in connection with registering and licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Inspection of motor scooters .................... 110 Leasing, purchased solely for, sales tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593 LicensesAnother State, licensed in, operation by Georgia residents . . . . . . . . . . . . . . . . . . . . . . . . . 352 Bad check to pay for, removal of license plate ....... 285 Mobile homes, plates used in transporting . . . . . . . . . . 340 Penalties, collection . . . . . . . . . . . . . . . . . . . . . . . . 482 Prestige license plates . . . . . . . . . . . . . . . . . . . . . . . 530 Liens, storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584 Overheight permits . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Radar speed detection . . . . . . . . . . . . . . . . . . . . . . . . . 102 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Safety standards, enforcement of ................. 534 Sales and use taxes, puchase of trucks solely for leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593 Size and weight, exemption from law where vehicles hauling farm and forestry products .............. 439 Storage liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496 Tires, studded, forbidden . . . . . . . . . . . . . . . . . . . . . . . 709 Used Car Dealers Registration Act, license fees under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 Wrecked, sale or disposal of . . . . . . . . . . . . . . . . . . . . . 660

824

INDEX

PAGE

MUNICIPAL CORPORATIONS. Annexations-Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Highways, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289 State aid, effect as to . . . . . . . . . . . . . . . . . . . . . . . . 274 State parks, of ............................ 277 &~eproperty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 State School Building Authority, property ownedby ............................. 303 U.S. highway, land containing . . . . . . . . . . . . . . . . . . 52 Audits of .................................. 50 Beer and wine store, municipal ownership of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Councilman employed in another capacity by city ....... 34 Military service, paid vacation for employees in addition to leave for . . . . . . . . . . . . . . . . . . . . . . 103 Police chief, justice of the peace also acting as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Primary elections ............................ 462 Sinking fund for bond issue . . . . . . . . . . . . . . . . . . . . . 231 State aid to cities, effect of annexations as to .................................... 274 State park, annexing .......................... 277 Tax anticipation notes as collateral for State deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Tax re-evaluation, contract with individual for information as to . . . . . . . . . . . . . . . . . . . . . .. 299 Taxation, authority as to . . . . . . . . . . . . . . ........ 758
NATIONAL TRAINING SCHOOL. Transfer of students to Georgia Youth Development Centers ................................. 234
NEW HOPE CREEK. Dredging of ill materials . . . . . . . . . . . . . . . . . . . . . . . 747
NOMINATIONS. Political parties, by ............................ 48
NONRESIDENTS. Medical examiners . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
NOTICE. Arraignment, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Candidacy, of, write-in candidates . . . . . . . . . . . . . . . . . 615 Official organ . . . . . . . . . . . . . . . . . ............. 223
OBSCENITY. Municipal ordinance dealing with subject covered by general State statute . . . . . . . . . . . . . . . . 664

INDEX

825 PAGE

OCEAN SCIENCE CENTER OF THE ATLANTIC COMMISSION
Contract with planning firm to develop land use plan for Skidaway Island . . . . . . . . . . . . . . . . . . . . . 147
Deeds, signatures on . . . . . . . . . . . . . . . . . . . . . . . . . . 538 OFFICERS AND EMPLOYEES, PUBLIC.
Conflicts of interest . . . . . . . . . . . . . . . . . . . . . . . 65, 187 OFFICIAL ORGAN
Legal notices, for . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 OLYMPIC TEAMS.
Fund raising for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 ORDINANCES.
Statutes, dealing with subject matter covered by ....664, 665 Violations, jury trial .......................... 747 ORDINARIES. Alcoholic beverages petition, duties as to . . . . . . . . . . . . . . 5 Elections, fees as to . . . . . . . . . . . . . . . . . . . . . . . . . . 386 Justices of the peace-
Appointing .............................. 743 Candidates for office of ordinary . . . . . . . . . . . . . . . . 292 Special elections, duties as to . . . . . . . . . . . . . . . . . . . . 131 Traffic casesFines and costs in .......................... 280 Prosecuted by solicitor general in court
of ordinary ........................... 682 OUTDOOR ADVERTISEMENTS.
Highways, adjacent to . . . . . . . . . . . . . . . . . . . . . . . . . 683 Regulation . . . . . . . . . . . . . ., . . . . . . . . . . . . . . . . . . 176 OYSTER BED LEASES. Sale in satisfaction of judgment . . . . . . . . . . . . . . . . . . . 95 PARKING;
Highway Department right-of-way, on . . . . . . . . . . . . . . . 34 PARKS.
Political subdivisions participating in development of regional park . . . . . . . . . . . . . . . . . . . . . . . . . . . 659
PARKS, STATE. Federal funds for ............................ 144 Municipality annexing . . . . . . . . . . . . . . . . . . . . . . . . . 277 Penal law enforcement within . . . . . . . . . . . . . . . . . . . . 549 Water for, expenditures for . . . . . . . . . . . . . . . . . . . . . . 64
PAROLE AGENCIES. Convicted persons hired by ..................... 394
PAROLEES. Merit system examination, taking . . . . . . . . . . . . . . . . . . 37

826

INDEX

PAGE

PATERNITY. Blood-grouping tests to determine ................. 719
PEACE OFFICERS. Convicted persons hired as . . . . . . . . . . . . . . . . . . . . . . 394 Municipal chief, j.p. also acting as . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Uninterrupted pursuit . . . . . . . . . . . . . . . . . . . . . . . . . 735 Witness fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494
PEACE OFFICER'S ANNUITY AND BENEFIT FUND. Reinstatement ............................... 36
PERMITS. Motor vehicles, overheight permits . . . . . . . . . . . . . . . . 260 Pistol carrier's, out-of-State . . . . . . . . . . . . . . . . . . . . . 625
PERSONAL INJURIES. State recreational property, on ................... 226
PERSONAL REPRESENTATIVES. Estate taxes, payment of ....................... 733
PEST CONTROL. Bonds, approval ............................. 526 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
PETITIONS. Intoxicating liquors election . . . . . . . . . . . . . . . . . . . 5, 457 Polling places, signatures on petition for referendum sought within certain distance of . . . . . . . . . . . . . . . . 525
PHOSPHATE LEASE. Proposed Chatham County phosphate lease ........... 495
,PHYSICIANS AND SURGEONS. Nonresident medical examiners . . . . . . . . . . . . . . . . . . . 105
PINBALL MACHINES. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Legality of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
PISTOL CARRIER'S PERMIT. Out-of-State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625
PLANNING AND DEVELOPMENT COMMISSION. Motor fuel and gasoline tax, payment of . . . . . . . . . . . . . 139
PLANNING AND ZONING COMMISSION ACT OF 1947. Generally ................................. 130
PLANNING BUREAU, STATE. Housing Act, applying for and administering grant under .................................. 178
PLANNING COMMISSIONS. Workmen's compensation coverage for multi-county planning commissions . . . . . . . . . . . . . . . . . . . . . . . 514
PLAT ACT, GEORGIA. Generally ................................. 130

INDEX

827 PAGE

POLICE OFFICERS. Convicted persons hired as . . . . . . . . . . . . . . . . . . . . . . 394 Municipal chief, justice of the peace also acting as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Uninterrupted pursuit ......................... 735 Witness fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494
POLITICAL PARTIES. Executive committee member serving on board of registrars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683 Nominations by .............................. 48 Primaries, dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Qualification fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Separate polling places . . . . . . . . . . . . . . . . . . . . . . . . 484 Substitute nominations ........................ 583
POLITICAL SUBDIVISIONS OF STATE. Regional park, participating in development of .................................... 659
POLK COUNTY. Education board, terms of members ............... 520
POLK COUNTY WATER AUTHORITY. Sewage facilities, construction and leasing of . . . . . . . . . . 669
PORTS AUTHORITY, GEORGIA. Real estate transfer tax, paying . . . . . . . . . . . . . . . . . . . . 91
POST MORTEM EXAMINATIONS. Blood examination . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Funeral director's duties when person dies under circumstances which would require .............. 420
PRISONS AND PRISONERS. See Sentence and Punishment. Accounts of inmates, State Board of Corrections closing . . . . . . . . . . . . . . . . . . . . . . . . . 21 7 Amended sentences .......................... 120 Central State Hospital ......................111, 112 Confidential nature of information supplied by inmates who cooperate in remedy of wrongdoing in system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 County prisoners, computation of sentences .......... 455 Detainer Act ........................ 421, 509, 515 Detainers, see Detainers. Foreign State, release of prisoner for trial in . . . . . . . . . . 436 Funds from sale of goods . . . . . . . . . . . . . . . . . . . . . . . 152 Hospitalization costs .......................... 169 Identification lineups . . . . . . . . . . . . . . . . . . . . . . . . . 442

828

INDEX

PAGE

PRISONS AND PRISONERS--Cont'd. Industry, incentive pay for State prisoners engaged in prison ................................ 670 Insane convicts, disposition of ................... 443 Mentally diseased inmates, examination of ........... 162 Pay for prisoners engaged in prison industry .......... 670 Release for trial in foreign State . . . . . . . . . . . . . . . . . . 436 Transcript of evidence, right of convicted defendant to, without cost . . . . . . . . . . . . . . . . . . . . . . . . . . . 751
PROBATION. Computation of probated sentence . . . . . . . . . . . . . . . . 753 Jurisdiction over probated sentence . . . . . . . . . . . . . . . . 197 Revocation ................................ 249 Suspension of running of probated sentence . . . . . . . . . . 435
PROBATION AGENCIES. Convicted persons hired by ..................... 394
PROBATION OFFICERS. County commissioner chairman employed as ........... 22
PROFESSIONAL FUND RAISING. Olympic teams, for . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
PROMOTIONAL SCHEMES. Lotteries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
PROPERTY, PRIVATE. Drilling on private property at State expense .......... 580
PROPERTY, STATE. Acquisition and disposal of . . . . . . . . . . . . . . . . . . . . . 474 Recreational events, personal injuries in . . . . . . . . . . . . . 226 Rental of surplus buildings . . . . . . . . . . . . . . . . . . . . . . 471 State employees, purchase by .................... 230 Surplus property transfer to local units of government .............................. 436 Waterbottoms, dredging . . . . . . . . . . . . . . . . . . . . . . . 747
PUBLIC SERVICE COMMISSION. Waiving registration fee under reciprocal arrangement .... 737
PUBLICATION. Constitutional amendmentFailure to publish .......................... 694 Rate for publishing ......................... 697
PURCHASING DEPARTMENT, STATE. Bid, refund of deposit included with . . . . . . . . . . . . . . . 134
PURCHASES, SUPERVISOR OF. Antique items, purchase of . . . . . . . . . . . . . . . . . . . . . 169 Clothing purchase policy of youth development center .................................... 6

INDEX

829 PAGE

PURCHASES, SUPERVISOR OF-Cont'd.

Surplus State property transfer to local units of

government .............................. 436

University of Georgia campus, sale of motor



scooters and bicycles abandoned on .............. 190

PUTNAM COUNTY DAIRY FESTIVAL.

Industry and Trade Department contract as to . . . . . . . . . . 93

RABUN GAP-NACOOCHEE SCHOOL.

Ad valorem taxation on certain property of . . . . . . . . . . 141

RACING.

'

Horse racing, legality . . . . . . . . . . . . . . . . . . . . . . . . . 329

RADAR.

Motor vehicle speed detection . . . . . . . . . . . . . . . . . . . 102

RADIATION CONTROL.

Regulatory power ........................... 431

RAILROADS.

Crossing, responsibility for maintaining road

surface next to wooden railroad ties .............. 606

REAL ESTATE COMMISSION, GEORGIA.

Housing law, federal, effect, etc. . . . . . . . . . . . . . . . . . . 278

REAL ESTATE TRANSFER TAX.

Generally 40,83,89~90,91,95, 105,189,230,258,332,437,

479,489,513,539,624,666,680,690,757

Timber . . . . . . . . . . . . . . . . . . . . . . . .-~---:~- . . 47, 332, 666

REAL PROPERTY.

Registration requirements for sale of unimproved

realty to general public . . . . . . . . . . . . . . . . . . . . . . 655

REAPPORTIONMENT.

Representative form of government as affected

by reapportionment cases . . . . . . . . . . . . . . . . . . . . . 672

RECALL ELECTIONS.

Generally ................................. 620

RECORDER'S COURT.

Public works camp under State Board of Corrections,

authority to commit individual to ............... 215

RECORDS, PUBLIC.

Inspection of . . . . . . . . . . . . . . . . . . . . . . . . . . . .727, 741

RECREATIONAL EVENTS.

Personal injuries on State property when engaged

in .................................... 226

REGENTS, BOARD OF.

See University System of Georgia.

830

INDEX

PAGE

REGISTRATION. Motor carrier, waiving fee under reciprocal arrangement ............................. 737 Motor vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
REPORTS. Air quality control . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
REPRESENTATIVE FORM OF GOVERNMENT. Reapportionment cases, as affected by . . . . . . . . . . . . . . 672
RESIDENCE. Electors, requirements as to . . . . . . . . . . . . . . . 84, 242, 523
RETIREMENT. See specific officer of employee. Trial judges and solicitors retirement fund ................................... 692
REVENUE COMMISSIONER, STATE. Alabama Power Company property tax return ......... 186
ROADS, COUNTY. Territorial extent and limits of coverted county roads received by implied dedication . . . . . . . . . . . . . 704
ROADS, PUBLIC. See Highways. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Mining operator agreeing to maintain . . . . . . . . . . . . . . . 578
SALES. Fireworks ................................. 456 Insurance ................................. 588 Money orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 Motor vehicles, wrecked . . . . . . . . . . . . . . . . . . . . . . . 660 Unimproved realty . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 University System Regents, property held by ......... 724
SALES AND USE TAXES. Common carriers engaged in interstate commerce ....... 561 Credit for taxes paid in another State . . . . . . . . . . . . . . . 547 Dual operators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Exemptions ............................... 379 Feed additives .............................. 336 Schools, exemptions .......................... 379
SAVINGS AND LOAN ASSOCIATIONS. Real estate transfer tax . . . . . . . . . . . . . . . . . . . . . . . . 513 Taxation of property of . . . . . . . . . . . . . . . . . . . . . . . 167
SCHOLARSHIPS. Teachers, enforcement of agreements ............... 528

INDEX

831 PAGE

SCHOOL BUSSES. Definition ................................. 648 Traffic regulations ........................... 648
SCHOOL SUPERINTENDENTS, COUNTY. Requirements .............................. 528
SCHOOLS. Driver training, licenses . . . . . . . . . . . . . . . . . . . . .353, 390 Kindergartens, day-care centers . . . . . . . . . . . . . . . . . . . 265
SCHOOLS, PUBLIC. See Education, County Boards of; Minimum Foundation Program. Attendance law, assigning of children who are residents of Georgia to Job Corps Centers . . . . . . . . . . . . . . . . 214 Attendance records .......................... 170 Bonds, issuance of . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 Borrowing by . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 224 Collective bargaining by teachers . . . . . . . . . . . . . . . . . . . 94 County school system, governing authority for .................................... 668 Extracurricular activities, use of funds for . . . . . . . . . . . . 243 Honor students banquet, expenditure of funds for ...... 557 Inspection of records ......................... 727 Investments ............................... 425 Married students . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Me~ed,borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Military bases, free public education for children who reside on . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676 Principals, education bonds for . . . . . . . . . . . . . . . .359, 511 Religious services, released time for . . . . . . . . . . . . . . . . 302 Tuition charged where students not residing in county .. ~ ............................ 433
SECURITIES. Land syndications under Georgia Securities Act ............................ 568
SENATORIAL DISTRICTS. Boundaries of 37th District ..................... 418
SENTENCE AND PUNISHMENT. See Prisons and Prisoners. Amendments of sentences ............... 120, 197, 202 Computation of sentences .................. .455, 508 Concurrent service of determinate sentence with probated sentence .......................... 562 Jurisdiction over probated sentences . . . . . . . . . . . . . . . 197

832

INDEX

PAGE

SENTENCE AND PUNISHMENT-Cont'd. Pre-conviction incarceration as affecting satisfaction of sentence .............................. 408 Probated sentenceComputation ot ........................... 753 Suspension of running of ..................... 435 RevocationNunc pro tunc order ........................ 342 Probation ................................ 249
SEPTIC TANKS. Rules and regulations . . . . . . . . . . . . . . . . . . . . . . . . . 227
SHERIFFS. Deputies, compensation ....................... 227 Duties where independent county police force .......... 40 Fees, increase as affecting costs . . . . . . . . . . . . . . . . . . . 470 Motor vehicle confiscated, fee from sale of ........... 679
SHERIFFS' RETIREMENT FUND. Warden of public works camp, credit for service as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
SINKING FUND. Municipal bond issue . . . . . . . . . . . . . . . . . . . . . . . . . 231
SKIDAWAY ISLAND. Ocean Science Center of the Atlantic Commission, contract for development of ................... 147
SMALL BUSINESS ADMINISTRATION. Reinsurer, as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262
SOCIAL SECURITY. Family and Children Services . . . . . . . . . . . . . . . . . . . . 379
SOLICITORS GENERAL. Budget separated from budget of superior court ........ 622 Emeritus ................................. 228
Suspension or forfeiture of status and benefits ........................ 497
Expenses for operation of offices of, payment of .............................. 724
Salary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Traffic violators prosecuted in court of ordinary
by .................................... 682 STATE OF GEORGIA.
Board member, employee of State also acting as ....... 547 Civil Air Patrol, State aid to Georgia wing of .......... 560 Conflicts of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Depositories, securities necessary . . . . . . . . . . . . . . . . . . 71 Drilling on private property at State expense .......... 580

INDEX

833
PAGE

STATE OF GEORGIA-Cont'd. EmployeesPurchasing State property .................... 230 Running for office ......................... 356 Lease of State owned off-shore mineral properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Membership fees in various State and national organizations, payment of .................... 137 Representative form of government as affected by reapportionment cases . . . . . . . . . . . . . . . . . . . , ... 672 Subscriptions to publications, expenditure of funds for .............................. 162 Surplus property transfer to local units of government .............................. 436
STATES OF UNION. Boundaries .............................258, 348
STATUTES. Constitutionality of, authority of Department of Law to pass on . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611 Municipal ordinance dealing with subject covered by ...........................664, 665
STEPHENS COUNTY. Commissioners, election . . . . . . . . . . . . . . . . . . . . . . . 291
STONE MOUNTAIN MEMORIAL ASSOCATION. Excise tax law, federal, applicability . . . . . . . . . . . . . . . 427 Wage and hour laws, federal, applicability . . . . . . . . . . . . 427
STORAGE LIENS. Motor vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584
STRUCTURAL PEST CONTROL. Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
STRUCTURAL PEST CONTROL COMMISSION, GEORGIA. Bonds submitted by licenses, approval of . . . . . . . . . . . . 526
SUPERIOR COURT CLERKS. Fees for certified copies of corporate charters ......... 400
SUPERIOR COURT CLERKS RETIREMENT FUND. Nature of system ............................ 703 Remittances for ............................. 409
SUPERIOR COURT JUDGES RETIREMENT FUND. Eligibility, etc............................... 647
SUPERIOR COURTS. Budget separated from budget of solicitor general ...... 622 Judges emeritus, eligibility, etc. . 477,485, 500, 555, 613, 757

834

INDEX

PAGE

SURFACE MINING ACT. Director of Department of Mines, Mining and Geology, duties under Act .................... 480 Licensing under . . . . . . . . . . . . . . . . . . . . . . . . . .518, 553
SURVEYORS, COUNTY. Justice of the peace, also acting as . . . . . . . . . . . . . . . . . 650 License, when necessary . . . . . . . . . . . . . . . . . . . . . . . 433 Qualifications of ............................ 745
TAX ANTICIPATION NOTES. Collateral for State deposits, for .................... 2
TAX ASSESSORS. Contract for information as to re-evaluation . . . . . . . . . . 299 County commissionerRunning for office as . . . . . . . . . . . . . . . . . . . . . . . . 324 Sitting with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 5 Failure to return property, duty to assess taxes upon persons where . . . . . . . . . . . . . . . . . . . . . . . . 128 Family and Children Services, County Department of, running for office as member of . . . . . . . . . . . . . . . . 324 Service as not rendering one ineligible to serve in a county office . . . . . . . . . . . . . . . . . . . . . . . . . . 355
TAX COLLECTORS. Digest preparation, county school tax digest . . . . . . . . . . 500 Registration fees, collecting . . . . . . . . . . . . . . . . . . . 51, 53
TAX COMMISSIONERS. Compensation .............................. 567 Failure to return property, duty to assess taxes upon persons where . . . . . . . . . . . . . . . . . . . . . . . . 128 Special election upon resignation . . . . . . . . . . . . . . . . . 239
TAX DIGEST. County schools ............................. 500 Schools, for, responsibility for preparation ........... 706
TAXATION. Bank stock ................................ 298 Banks, recording tax . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Development authority, proceeds to ............... 465 Documentary tax on transfers to Georgia Education Authority (Schools) ......................... 82 Motor fuel and gasoline purchased by planning and development commission . . . . . . . . . . . . . . . . . . . . . 139 Municipal authority ....... : .................. 758 New taxes, appropriation of anticipated revenue from .................................. 602

INDEX

835
PAGE

TAXATION-Cont'd. Property subject to levy . . . . . . . . . . . . . . . . . . . . . . . 194 Property subject to school taxation ................ 646 Real estate transfer tax . 40, 83, 89, 90, 91, 95, 105, 189, 230, 258,332,437,479,489, 513,539,624,666,680,690,757 Timber transfer .......................... 47, 332 Wine, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
TAXATION, COUNTY. Recovery, time limit .......................... 698
TEACHERS. Attendance records of pupils .................... 170 Collective bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Education board, also serving as member of . . . . . . . . . . . 33 Elective offices, holding . . . . . . . . . . . . . . . . . . . . . . . 473 Scholarship agreements, enforcement of ............. 528 Trustees, serving as member of local school . . . . . . . . . . . 296
TEACHERS' RETIREMENT SYSTEM. Check to deceased teacher, disposition of . . . . . . . . . . . . 502 Credit for prior service . . . . . . . . . . . . . . . . . . . . . . . . 294 Military service, credit for . . . . . . . . . . . . . . . . . . . . . . . 44
TEXTBOOKS. Bids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
TIMBER. Real estate transfer tax . . . . . . . . . . . . . . . . . . 47, 332, 666
TIRES. Studded, forbidden .......................... 709
TOCCOA, CITY OF. Annexation of territory ........................ 219
TRADING STAMPS. Lottery statutes, application of .................. : 689
TRAFFIC RECORDS STUDY. Contract for, validity of ....................... 362
TRAFFIC REGULATIONS. Constable regulating traffic . . . . . . . . . . . . . ........ 466 School busses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648 Speed laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
TRAFFIC VIOLATIONS. Fines and costs ............................. 280 Ordinary's court, solicitor general prosecuting in ....... 682
TRIAL JUDGES AND SOLICITORS RETIREMENT FUND. Business transacted during meeting held without notice of two ex officio members . . . . . . . . . . . . . . . . . . . . 699 Contributions .............................. 517

836

INDEX

PAGE

TRIAL JUDGES AND SOLICITORS RETIREMENT FUND
--Cont'd.
Mandatory membership for solicitors general of inferior courts ............................ 692
TRUSTS. Investment trusts, income taxes . . . . . . . . . . . . . . . . . . 182
UNIVERSITY SYSTEM OF GEORGIA. Abandoned motor scooters and bicycles on campus, sale of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Board of Regents-Collection agency, spending State funds to
contract with .............................4 Compensation of employees ................... 407 Leases for food service establishments . . . . . . . . . . . . 337 Sale of property held by . . . . . . . . . . . . . . . . . . . . . 724 Professor as member of local board of education .......206 UPSON COUNTY AREA VOCATIONAL-TECHNICAL SCHOOL. Tuition where students not residing in county ......... 433 USED CAR DEALERS REGISTRATION ACT. License fees under . . . . . . . . . . . . . . . . . . . . . . ..... 640 UTILITIES, PUBLIC. Highway Department reimbursement for relocations . .339, 601 VENDING STAND ACT. Georgia Building Authority buildings subject to provisions of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
VETERANS. Drivers' licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
VETERANS SERVICE, DEPARTMENT OF. Building Authority (Hospital), agreement for use of hospital ................................ 710 War Veterans Nursing Home, increase in construction price .................................. 660
VOCATIONAL EDUCATION, STATE BOARD FOR. Coosa Valley Area Vocational and Technical School, contract with ............................. 524
VOCATIONAL REHABILITATION. Lien statement filed in connection with . . . . . . . . . . . . . 490
VOTE RECORDERS. Use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
VOTOMATIC MACHINES. Use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

INDEX

837 PAGE

WAGES. 'Checkless payroll plan . . . . . . . . . . . . . . . . . . . . . . . . . 356
WAR VETERANS NURSING HOME. Increase in construction contract price .............. 660
WAREHOUSE ACT, GEORGIA STATE. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
WAREHOUSES. Validity of law as to . . . . . . . . . . . . . . . . . . . . . . . . . . 145
WARRANTS. Constables' fees for serving . . . . . . . . . . . . . . . . . . . . . 466
WASHINGTON COUNTY. Sheriff's fee from sale of confiscated motor vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 679
WEAPONS. Pistol carrier's permit, out-of-State ................ 625
WHITFIELD COUNTY. Historical marker site . . . . . . . . . . . . . . . . . . . . . . . . . 590
WIDOWS. Homestead exemptions ........................ 232
WINE. Municipal ownership of store . . . . . . . . . . . . . . . . . . . . 145 Taxation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 221
WITNESSES. Crime Laboratory, State, employees of . . . . . . . . . . . . . 756 Fees of peace officers . . . . . . . . . . . . . . . . . . . . . . . . . 494
WORKMEN'S COMPENSATION. Head Start programs, coverage requirements for . . . . . . . . 322 Planning commissions, multi-county, inclusion ........ 514
YOUTH COUNCIL, GEORGIA. Membership dues ............................ 405
YOUTH DEVELOPMENT CENTERS, GEORGIA. Oothing purchase policy . . . . . . . . . . . . . . . . . . . . . . . . .6 Transfer of students to ........................ 234
ZONING APPEALS BOARD. Education board, member serving as member of . . . . . . . . 186