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